Wednesday, 18 October 2023
Bills
Transport Legislation Amendment Bill 2023
Bills
Transport Legislation Amendment Bill 2023
Statement of compatibility
Melissa HORNE (Williamstown – Minister for Casino, Gaming and Liquor Regulation, Minister for Local Government, Minister for Ports and Freight, Minister for Roads and Road Safety) (10:39): In according with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Transport Legislation Amendment Bill 2023.
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Transport Legislation Amendment Bill 2023 (the Bill).
In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with the human rights protected by the Charter. I have this opinion for the reasons outlined in this statement.
Overview of the Bill
The Bill amends the Bus Safety Act 2009 (Bus Safety Act), the Commercial Passenger Vehicle Industry Act 2017 (CPVI Act), the Marine (Domestic Commercial Vessel National Law Application) Act 2013, the Road Management Act 2004, the Road Safety Act 1986 (Road Safety Act), the Sentencing Act 1991, the Transport Accident Act 1986, the Transport (Compliance and Miscellaneous) Act 1983 (TCM Act) and the Transport Integration Act 2010 (Transport Integration Act).
The Bill also makes minor and technical amendments to other acts.
Relevantly to human rights, the purpose of the amendments to the Bus Safety Act is to provide for a bus driver accreditation scheme for drivers of commercial bus services that is aligned with the accreditation scheme for drivers providing commercial passenger vehicle services under the CPVI Act.
The relevant purpose of the amendments to the CPVI Act is to amend the provisions in relation to review of administrative decisions and in relation to information sharing arrangements.
The relevant purposes of the amendments to the Road Safety Act are to extend the time for which someone is subject to a zero blood or breath alcohol concentration requirement following the removal of an alcohol interlock condition, to expand the powers of police officers and protective services officers with respect to persons who are incapable of having proper control of a vehicle and to provide for requirements relating to vehicle sharing schemes.
The relevant purpose of the amendments to the TCM Act is to amend the Act in relation to use and disclosure of public transport movement information.
The relevant purpose of the amendments to the Transport Integration Act is to make changes consequential to the establishment of Safe Transport Victoria (STV).
Human rights issues
The human rights protected by the Charter that are relevant to the Bill are the right to freedom of movement in section 12, the right to privacy in section 13(a), the right to not be deprived of property other than in accordance with law in section 20, the right to a fair hearing in section 24(1), the rights in criminal proceedings in section 25, the right not to be tried or punished more than once in section 26 and the protection against retrospective criminal laws in section 27.
Freedom of movement (s 12)
Section 12 of the Charter relevantly provides that every person lawfully within Victoria has the right to move freely within Victoria. The right extends, generally, to movement without impediment throughout the State, and a right of access to places and services used by members of the public, subject to compliance with regulations legitimately made in the public interest. The right is directed at restrictions that fall short of physical detention (restrictions amounting to physical detention fall within the right to liberty, protected under section 21 of the Charter) and may include freedom from physical barriers and procedural impediments. The right may also extend to protection of access to, or use of, facilities necessary to enjoy freedom of movement (such as vehicles).
The Bill limits the freedom of movement by operation of several provisions which amend the Road Safety Act.
Clause 44 of the Bill provides that a person will be subject to a zero blood or breath alcohol concentration (BAC) requirement for 3 years following the removal of an alcohol interlock condition. Clause 46 of the Bill expands existing police powers which currently allow an officer to take reasonable steps to prevent an incapable person from driving a motor vehicle to incorporate not just the motor vehicle that the person was driving or about to drive, but any other vehicle (whether motorised or not). Finally, clause 47 of the Bill prohibits the use of electric scooters on freeways and provides the power for police to remove these scooters from freeways. These provisions may operate to limit a person’s right to freedom of movement by imposing limitations on when and where a person may freely travel in their vehicle.
However, in my view, any such limitation will be reasonable and demonstrably justified having regard to the factors in section 7(2) of the Charter. Each of the new provisions are directed at the protection of public safety by mitigating the risk of a person operating a vehicle in a dangerous manner, including in a way that may result in serious injury and/or death. The extension of the requirement of a person to maintain a zero BAC while driving also sends a clear regulatory signal that they must continue to separate drinking from driving when their alcohol interlock condition is removed. The minor expansion of police powers to allow officers to prohibit a person from using not just the motor vehicle that the person was driving or about to drive, but any other vehicle (whether motorised or not), remains subject to the existing and appropriate safeguards in section 62 of the Road Safety Act including that the officer needs to hold the opinion on ‘reasonable grounds’ that the person is incapable of having proper control of the vehicle and that the detention of any keys or vehicle is not to be for any longer than is necessary having regard to the interests of the driver or the public. Accordingly, I consider these provisions represent a reasonable and proportionate response to the legitimate purpose of regulating drivers in the interests of public safety on the roads. Further, under section 38 of the Charter, the powers in preventing an incapable person from using a vehicle or removing an electric scooter from a freeway must be exercised by police or protective service officers in a manner that is compatible with human rights. For these reasons, I consider that these provisions are compatible with the right to freedom of movement in the Charter.
Right to privacy (s 13)
Section 13(a) of the Charter provides that a person has the right not to have their privacy unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.
Clause 6 of the Bill amends the Bus Safety Act to require a person to provide certain personal information as part of their application for accreditation as a driver. Clauses 21 and 22 amends the CPVI Act to expand the power of the regulator to share sensitive information, defined as information obtained in exercise of functions and that is, or is stated to be, confidential or commercially sensitive in nature, with other agencies under information sharing arrangements. Clause 75 inserts new section 115U into the Transport Integration Act to allow STV to disclose and publish information collected in the exercise of its functions where it is considered necessary for the safe operation of bus or marine transport. Clause 63 amends the TCM Act to allow public transport movement information, defined as information or data relating to the movement of an individual into, out of or within a carriage or ticketed area and which includes myki data and CCTV footage and live feeds, to be used and disclosed in particular ways. The new provision (section 221) relevantly allows for the information to be used and disclosed by a relevant entity in connection with the Act or regulations, including for a legal proceeding, for a prescribed purpose or in accordance with a direction of the Minister. The new provision also allows for disclosure to certain certified people.
While not all information required under these clauses will be of a private nature, or be information concerning a natural person, as opposed to information concerning a corporation to which the Charter does not apply, the power afforded to an entity to collect, use and share information or documents may engage the right to privacy. However, to the extent that these provisions do require disclosure of personal information, this will occur in lawful and not arbitrary circumstances.
The requirement for a prospective driver to provide certain personal information to STV under the Bus Safety Act is clearly linked to the legitimate aim of properly assessing the application to ensure a prospective driver meets the relevant legislative requirements and is a fit and proper person to be accredited as a driver. The aim is important as matters of driver suitability are critical to safeguarding the health and safety of the public. The requirements will apply to prospective drivers who are voluntarily seeking to work in a regulated industry where special duties and responsibilities attach.
Amendments to the CPVI Act which expand the power of the regulator to share sensitive information with other agencies is particularly aimed at allowing the regulator to share data with the State Revenue Office to ensure that commercial passenger vehicle owners and operators are complying with their levy obligations under the Duties Act 2000. This data is highly unlikely to be private information concerning natural persons to which the Charter will apply. In any event, the provisions allow for the sharing of information in the specific circumstances outlined in the sections and the expansion serves a legitimate purpose, being to facilitate the effective administration of the CPVI Act and related legislation and to assist in compliance monitoring and enforcement activities where appropriate.
Amendments to the Transport Integration Act allows information to be disclosed and published (in a de-identified form). The provisions are circumscribed in their scope and only allow for the disclosure and publication of information where STV considers it necessary to do so for the safe operation of bus and marine transport. This serves the legitimate purpose of assisting STV to effectively administer the Transport Integration Act and other related legislation and to fulfil one of its key objectives in seeking the highest possible bus and marine safety standards.
Amendments to the TCM Act allows public transport movement information, including myki data and CCTV footage and live feeds to be used and disclosed in particular ways. The provisions are circumscribed in their scope and only allow for the use and sharing of information in the specific circumstances outlined in the sections, including for the legitimate purpose of administering the TCM Act and for a legal proceeding. The power to make further regulations or directions for the use and sharing of this information is reserved for where the need to use or share this information cannot be wholly anticipated or may need to be done in urgent circumstances. In any event, these circumstances will be specified in future regulations and in directions which are required by the TCM Act to be published unless it is inappropriate to do so. As such, the circumstances in which public transport information may be used and disclosed will be clear on the public record in all but exceptional circumstances.
I therefore consider that any interference with the right to privacy resulting from these provisions will be neither unlawful nor arbitrary.
Right to property
Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. This right requires that powers which authorise the deprivation of property are conferred by legislation or common law, are confined and structured rather than unclear, are accessible to the public, and are formulated precisely.
The Bill engages the right to property by operation of several provisions which amend the Road Safety Act. These are the same provisions identified above in relation to the right to freedom of movement being clauses 44, 46 and 47 of the Bill. These provisions engage the right to property as each imposes conditions on where and how a person may use their vehicle, which may affect elements that comprise the bundle of proprietary rights, such as the right to enjoyment of their property.
However, in my view, to the extent that these provisions constitute a deprivation of a proprietary right (such as enjoyment of property) this Bill does not act to limit the right to property as any interference with this right is done according to legislation which clearly specifies the scope and circumstances of the allowable conditions which can be imposed on the use of a person’s vehicle, and does so for legitimate purposes. As outlined above, section 62 of the Road Safety Act lists the criteria for officers to exercise their powers to prevent a person from using a vehicle. Further, section 68A of the Road Safety Act, as amended by clause 47, provides a clear prohibition on the use of electric scooters on freeways without reasonable excuse and where not otherwise authorised. Clause 44 also creates an express statement that people who have been subject to an alcohol interlock condition will be subject to a further 3 year zero BAC requirement after the alcohol interlock condition is removed. The interlock condition remains in place for a specific, defined time period which I am satisfied is no longer than is necessary to ensure that the person continues to separate drinking and driving after the interlock is removed from their vehicle. For these reasons, I consider that these provisions are compatible with the right to freedom of property in the Charter.
Right to a fair hearing (s 24)
Section 24(1) of the Charter relevantly provides that a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The concept of a ‘civil proceeding’ is not limited to judicial decision makers, but may encompass the decision-making procedures of many types of tribunals, boards and other administrative decision-makers with the power to determine private rights and interests. While recognising the broad scope of section 24(1), the term ‘proceeding’ and ‘party’ suggest that section 24(1) was intended to apply only to decision-makers who conduct proceedings with parties. As the administrative decisions at issue here do not involve the conduct of proceedings with parties, there is a question as to whether the right to a fair hearing is engaged.
In any event, if a broad reading of section 24(1) was adopted and it was understood that the fair hearing right was engaged by this Bill, this right would nonetheless not be limited. The right to a fair hearing is concerned with the procedural fairness of a decision and the right may be limited if a person faces a procedural barrier to bringing their case before a court, or where procedural fairness is not provided. The entire decision-making process, including reviews and appeals, must be examined in order to determine whether the right is limited.
Review rights of administrative decisions
The new provisions inserted into the Bus Safety Act (clauses 3–11 of the Bill) which provide for a bus driver accreditation scheme for drivers of commercial bus services may engage the right to a fair hearing. Decisions made by the newly established STV in relation to disciplinary action against drivers are made pursuant to a show cause process whereby the driver is notified of the proposed disciplinary action, the grounds of this proposed action are specified and the driver is provided with the opportunity to make written submissions in response (new section 55Y). STV is required to provide reasons for any decision in relation to disciplinary action or accreditation and notify the driver or prospective driver of their review rights (pursuant to new sections 55P, 55Q, 55T, 55V and 55ZA). Except for a decision made to refuse accreditation on the grounds set out in new section 55O(2) or to cancel a driver’s accreditation pursuant to new section 55ZB, these decisions are subject to internal review (new section 58A). Finally, any decision made in relation to existing accreditations or taking disciplinary action towards drivers by STV (including the two decisions mentioned above which are not subject to internal review) will be subject to external review by the Victorian Civil and Administrative Tribunal (new Division 4 of Part 6). This affords drivers a hearing before an independent and impartial tribunal and satisfies the requirements in section 24(1) of the Charter.
Clause 18 of the Bill amends the CPVI Act to remove the right of review in relation to a decision by STV or an authorised officer to direct a person to provide information, documents and related items. As outlined above, there is a significant question as to whether this power involves the conduct of proceedings, as these are powers of investigation or monitoring, rather than decisions that determine existing rights or interests. In any event, the nature of this power indicates that it is justifiable to limit review rights. These requests may be made by the regulator for compliance and investigative purposes. The requests apply to people who have chosen to assume roles in relation to the operation of commercial passenger vehicles and to which special regulatory and legal responsibilities and duties attach. Further, these are documents which are required under the CPVI Act to be kept by the person or are within their control and relate to relevant matters, and to be produced to the regulator - and are generally not, in the context of comparative regulatory regimes, subject to review. As such, the legitimate purpose of checking compliance with regulatory requirements and investigating possible breaches of the law justifies any limitation on fair hearing rights which may result from removing the right of review of this decision. Additionally, providing for review in relation to directions to produce documents would prejudice the efficient and prompt monitoring of compliance with the scheme, which ultimately serves to safeguard public safety.
As such, I conclude that the fair hearing rights in section 24(1) of the Charter are not limited by the provisions amending the Bus Safety Act or the CPVI Act.
Certain officers are immune from liability when exercising powers under the Act
The Bill inserts new section 115P into the Transport Integration Act, which establishes that the Chief Executive or an employee of STV are not subject to personal liability for their acts, decisions and omissions conducted in good faith under that or other Acts.
The fair hearing right is relevant to new section 115P as the right has been held to encompass a right of access to the courts to have one’s civil claims submitted to a judge for determination. Similarly, insofar as a cause of action may be considered ‘property’ within the meaning of section 20 of the Charter, new section 115P may also engage this right. Nevertheless, the new section 115P(2) provides that where actions or omissions of the relevant person give rise to a civil claim, liability is transferred to STV. Accordingly, the exclusion from personal liability under the provision will not interfere with the right to a fair hearing or constitute a deprivation of property, because parties seeking redress are instead able to bring a claim against STV. The provision also serves a necessary purpose by ensuring that the Chief Executive and employees of STV are able to exercise their duties effectively without the threat of significant personal repercussions and overall interference that responding to court claims has. Additionally, the Chief Executive and employees will still remain personally liable for any conduct not performed in good faith. Accordingly, this provision does not limit the rights to a fair hearing or property under the Charter.
Right to be presumed innocent (s 25(1))
Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right is relevant where a statutory provision allows for the imposition of criminal liability without the need for the prosecution to prove fault.
The Bill inserts a number of strict liability offences in relation to driver accreditation into the Bus Safety Act (clause 6), an offence imposing an obligation to obtain authorisation to operate vehicle sharing schemes into the Road Safety Act (clause 55) and offences in relation to the unauthorised use or disclosure of public transport movement information into the TCM Act (clause 63). These offences do not require proof of fault, being that the person or entity did so ‘knowingly or recklessly’.
The inclusion of these strict liability offences in the Bill is relevant to the right to be presumed innocent under s 25(1) of the Charter.
To the extent that this imposition limits the presumption of innocence, I consider that this limitation can be reasonably justified pursuant to the factors in section 7(2) of the Charter. Strict liability offences will generally be compatible with the presumption of innocence where they are reasonable, necessary and proportionate in pursuit of a legitimate objective. The strict liability offence in the TCM Act is aimed at deterring the unlawful or arbitrary interference with a person’s privacy by requiring that public transport movement information, which includes myki data and CCTV footage, is only used and disclosed for specified purposes. This assists to enhance compliance with regulatory requirements and to ensure that people’s privacy is only limited to the extent authorised and legitimately justified.
The strict liability offences in the Bus Safety Act and Road Safety Act are aimed at deterring actions which may endanger public safety including drivers operating vehicles without proper accreditation or in contravention of particular conditions and the operation of vehicle sharing schemes without regulatory oversight where proper safety controls may not be in place. This assists to enhance compliance with regulatory requirements and ultimately to protect the public on the roads. It is reasonable that the offences do not require proof of fault given significant harm to property and to people that can arise regardless of whether a person or entity acted intentionally or recklessly. Further the offences are reasonable in that they do not exclude the common law defence of honest and reasonable mistake of fact, and they do not attract penalties of imprisonment.
For these reasons, the limitation to section 25(1) of the Charter is reasonable and justifiable within the meaning of section 7(2) of the Charter.
Right not to be tried or punished more than once
Section 26 of the Charter provides that a person must not be tried or punished more than once for an offence in respect of which they have already been finally convicted or acquitted in accordance with law. This right reflects the principle of double jeopardy. However the principle only applies in respect of criminal offences - it will not prevent civil proceedings being brought in respect of a person’s conduct which has previously been the subject of criminal proceedings, or vice versa.
Penalties and sanctions imposed by professional disciplinary bodies do not usually constitute a form of ‘punishment’ for the purposes of this right as they are not considered to be punitive.
The new accreditation scheme inserted into the Bus Safety Act (clauses 3–11 of the Bill) which affords STV the ability to refuse accreditation or to undertake disciplinary action against a driver does not engage this right. This is because the purpose of each of these sanctions, for example the requirement that accreditation is refused where the driver does not hold a licence or has been convicted of particular serious offences, is imposed to protect the public from potential harm.
Similarly, the extension of the requirement of a person to maintain a zero BAC while driving following the removal of an alcohol interlock condition (clause 44) which acts to send a clear regulatory signal for the person to separate drinking from driving also acts to protect the person and the public from the risk of potential harm.
As these sanctions are for protective rather than punitive purposes they do not engage the right against double punishment set out in section 26 of the Charter.
Retrospective criminal laws
Section 27(2) of the Charter provides that a penalty must not be imposed on any person for a criminal offence that is greater than the penalty that applied to the offence when it was committed.
Clause 57 of the Bill expressly provides that the imposition of a requirement that a person has zero BAC while driving for a period of 3 years following the removal of any alcohol interlock conditions imposed under current sections 31KA, 31KB or 50AAA of the Road Safety Act will apply where the condition was imposed on the basis of at least two offences and the latest of those offences was committed on or after the commencement of the relevant provisions. Clause 57 further provides that the imposition of a requirement that a person has zero BAC while driving for a period of 3 years applies where a person would have had an alcohol interlock condition imposed if not for an exemption granted under section 50AAAD and the condition would have been imposed on the basis of at least two offences and the latest of those offences was committed on or after the commencement of the relevant provisions. The imposition of a zero BAC condition is in effect a regulatory condition to mitigate a person’s risk of driving impaired, and as such, constitutes a measure to protect the community. Accordingly, in my view it is unlikely to constitute a ‘penalty’ within the meaning of this right, and as such, does not engage this right.
Conclusion
I am therefore of the view that the Bill is compatible with the Charter.
Hon Melissa Horne MP
Minister for Roads and Road Safety
Second reading
That this bill be now read a second time.
I ask that my second-reading speech be incorporated into Hansard.
Incorporated speech as follows:
Overview
The main purpose of this Bill is to continue the Government’s strong commitment to road safety and the delivery of the Road Safety Strategy, through enabling the conduct of a world leading research trial into medicinal cannabis and driving. While this is a road safety challenge, it is also an issue of human rights – we currently have a situation where Victorians are forced to choose between taking prescribed medicinal cannabis to treat medical conditions and being able to drive. The safety of all road users is our highest priority however, this Government recognises that many people prescribed medicinal cannabis have a genuine driving need. This Government is committed to further research to better understand the road safety risk profile associated with those taking medicinal cannabis, to support the Government establishing an evidence-based policy position on medicinal cannabis and safe driving. This Bill will create a mechanism to declare that specified provisions of the Road Safety Act 1986 do not apply for the purposes of the trial.
The Bill is also intended to further improve safety by protecting amenity and accessibility in public spaces in relation to e-scooter and bicycle (including e-bicycle) share schemes. Whilst e-scooters in Victoria have many benefits in terms of transport and mobility, there can be issues with shared scheme e-scooters or bicycles being left on footpaths or in other public places in a way that blocks access, introduces tripping hazards, or otherwise creates an impact on the use or amenity of public spaces. The Bill will give local government greater control over e-scooter and bicycle (including e-bicycle) share schemes within their local government areas.
The Bill will also support the implementation of other reforms in the transport portfolio by improving governance and better support the functioning of sector transport agencies by amending the Transport Integration Act 2010 to reflect Transport Restructuring Orders that establish Safe Transport Victoria as a sector transport agency and reconstitute the V/Line Corporation from a statutory corporation with a board to a single member corporation.
The Bill will also provide consistency across transport legislation by aligning bus driver accreditation under the Bus Safety Act 2009 with accreditation of drivers of commercial passenger vehicles under the Commercial Passenger Vehicle Industry Act 2017.
Enabling research trials to provide an evidence-base for future road safety reforms
Victoria is a leader in medical cannabis in Australia. In 2016, Victoria became the first state in Australia to approve the use of medicinal cannabis under prescription for therapeutic uses. We are now faced with a road safety and human rights challenge – where Victorians are forced to choose between taking prescription medicinal cannabis and having the freedom of being able to drive for work, education or family purposes. This is because it is not legal to drive while there is presence of tetrahydrocannabinol (THC) in the person’s system, not whether they are actually impaired at the time of driving the vehicle. Given THC can remain in a person’s system for a number of days, Victorians using medicinal cannabis are effectively banned from driving long after they become unimpaired from using this prescribed medication.
To address this situation, it is necessary to conduct world leading research to expand our knowledge of the impairment medicinal cannabis causes on driving, while ensuring the safety of all road users. This will be an Australian first. The reforms in this Bill will allow the Minister for Roads and Road Safety, in consultation with other relevant Ministers, to designate a road safety research trial and declare that specified provisions of the Road Safety Act 1986, or rules or regulations made under that Act, either do not apply or apply in a varied form to trial participants for the purposes of the trial.
Research trials will not be limited to the use of medicinal cannabis. This amendment will allow for the declaration of trials for a range of road safety initiatives. This provides flexibility in testing the efficiency and efficacy of a range of other technologies and approaches to further expand the evidence-base for future reforms and continue to deliver improvements in road safety outcomes.
Greater power for local governments to manage e-scooter and bicycle share schemes
The use of e-scooters provided under share schemes is proving to be popular in Victoria, with Melbournians, in particular, taking up the devices in high numbers. E-scooters, as well as bicycles and e-bikes, made available via share schemes are a useful and popular mode of transport for people wanting to travel short distances. They help ease congestion, they’re an affordable mode of transport and provide first/last mile access to public transport.
To ensure the safety of e-scooter riders, pedestrians and other road users, the Victorian Government has enabled the use of e-scooters through trials throughout Victoria under certain conditions. E-scooter riders using these devices as part of the trial are required to follow road safety rules, including the wearing of helmets and restrictions on speed and where the e-scooters are able to be lawfully ridden.
Whist there are many positives of e-scooters provided under share schemes, they can also present challenges for local governments. As these devices are provided for hire in public spaces and are not required to be returned to any particular location, there can be issues with e-scooters or bicycles being left on footpaths or in other public places in a way that blocks access, introduces tripping hazards, or otherwise creates an impact on the use or amenity of public spaces.
The reforms in this Bill will provide local governments with control over how e-scooter and bicycle share schemes operate in their municipalities. The reforms will effectively ban the provision of e-scooters and bicycles by share scheme operators in a local government area unless the operator has an agreement in place with the relevant council.
The obligation will be on the share scheme operator to ensure that the vehicles available in their scheme are only used in areas where they have an agreement with the relevant council. It will be an offence for a share scheme operator to make an e-scooter or bicycle available for hire in a given local government area without such an agreement.
Councils will also be able to set the conditions on how such schemes operate. The agreements between share scheme operators and councils will be required to specify the types of vehicles that can be made available for hire but can include a range of other matters including the period of time the scheme may operate, minimum service standards, and insurance requirements.
This reform strikes an appropriate balance between making the use of e-scooters and other vehicles available for use while maintaining Councils’ ability to ensure the amenity, use and safety of public spaces.
Other roads and road safety reforms
In addition to the road safety reforms above, the Bill contains other minor amendments to legislation in the Roads and Road Safety portfolio to ensure their effective operation. These amendments include:
• Ensuring that the removal of an alcohol interlock licensing condition imposed after a drink-driving offence is accompanied by the imposition of a ‘Zero BAC’ requirement to continue to support these drivers in their efforts to separate drinking from driving;
• Amending relevant sections in the Transport Accident Act 1986 to clarify that people who are exempted from paying the transport accident charge as part of the process of registering their vehicles are still fully covered by the protections available under the Transport Accident Act 1986 relating to traffic accidents;
• Extending the ability of police and protective services officers to prevent incapable persons from driving the motor vehicle in which they were detected, to be able to prevent incapable persons from driving any motor vehicle for a specified time;
• Repealing provisions in the Road Management Act 2004 relating to the establishment and functions of the Infrastructure Reference Panel and replacing them with a requirement to consult with relevant road authorities, utilities and public transport providers; and
• Other minor and technical amendments to the Road Safety Act 1986.
Clarifying the governance of sector transport agencies
Sector transport agencies are public bodies established under the Transport Integration Act 2010 to perform specified functions in Victoria’s transport network.
Part 4B of the Transport Integration Act enables the making of Transport Restructuring Orders (tros). Tros are Orders in Council that can be used to create new sector transport agencies, alter the constitution and membership of existing sector transport agencies, and modify the application of provisions in transport legislation. However, tros cannot be used to abolish an existing sector transport agency.
Tros provide a flexible mechanism for responding to changing priorities and circumstances and can be used to deliver better integrated and connected transport services for Victorians.
On 14 June 2022, a TRO made by the Governor in Council established Safe Transport Victoria (ST Vic) as a new sector transport agency, with responsibility for managing compliance, accreditation and registration for commercial passenger vehicles, buses, and the maritime sector. The TRO transferred to ST Vic all of the duties, functions and powers previously held by the Director, Transport Safety and the Commercial Passenger Vehicle Commission (CPVC).
On 29 June 2021, a TRO was used to convert the V/Line Corporation from a corporation with a board to a single member corporation. This was to bring V/Line more directly into the centre of Victoria’s public transport system, aligning and integrating V/Line with transport planning, Big Build project delivery, and decision making. Aside from necessary amendments to reflect this new constitution, the V/Line Corporation was otherwise continued as the same entity.
As a flexible mechanism, a TRO is able to be made more quickly than would otherwise be possible if legislative amendments were required to achieve the same result. However, tros are not intended to remain in force indefinitely. The amendments in this Bill will give full legal effect to the objectives of the above tros, delivering transparency and certainty and eliminating any legal risk of challenges to authority on technical grounds.
These amendments will also formally abolish the CPVC and the Director, Transport Safety.
More transparency in the sharing of data from the public transport network
The Bill contains two reforms to improve the sharing of information arising from the operation of the public transport system.
The Bill will amend the Transport (Compliance and Miscellaneous) Act 1983 to improve transparency around the disclosure and use of information relating to the movement of people across the public transport network, including closed circuit television (CCTV) footage and data collected from the Myki ticketing system. Presently, the sharing of such information is only permitted through ministerial directions. The reforms in this Bill will replace this ministerial direction process with standard circumstances in which such information can be divulged and a power to make regulations to allow for any additional standard circumstances in future. The ministerial direction power will be retained for any novel or urgent circumstances, but it is expected that the standard circumstances set out in the Act and regulations will cover most situations.
This Bill will also amend the Commercial Passenger Vehicle Industry Act 2017 to make it clear that information sharing agreements under that Act explicitly enable Safe Transport Victoria to share commercially sensitive trip data with the State Revenue Office to support the SRO with its compliance and enforcement functions in relation to the commercial passenger vehicle service levy.
Improve alignment between bus driver and commercial passenger vehicle accreditations
In 2017, the Victorian Government introduced a series of reforms to the commercial passenger vehicle industry, including those in the Commercial Passenger Vehicle Industry Act 2017. These reforms created a separate, modernised scheme for commercial passenger vehicle (CPV) drivers but left the existing bus driver accreditation scheme unchanged.
This Bill introduces a modernised, best practice bus driver accreditation scheme to the Bus Safety Act 2009 and removes the previous scheme from the Transport (Compliance and Miscellaneous) Act 1983. As well as introducing best practice bus driver accreditation, the reform in this Bill will also result in administrative efficiencies as both bus driver and CPV driver accreditations are overseen by the same regulator, Safe Transport Victoria.
Other amendments to the Bus Safety Act 2009 will broaden Safe Transport Victoria’s ability to grant exemptions from some accreditation requirements where the regulator is satisfied that the person is already complying with the requirement.
The Bill also makes a range of technical amendments to improve the operation of the TIA, the Transport (Compliance and Miscellaneous) Act, and the Marine (Domestic Commercial Vessel National Law Application) Act 2013.
Conclusion
This Bill represents another step in the Victorian Government’s continued commitment to improving transport safety and improving the lives of Victorians.
We need to continue to take action to develop the evidence-base for future road safety initiatives and to ensure that road and road safety legislation represents best practice, keeping the balance right, and ensuring that Victorians are safe on our roads.
We also need to maintain clear governance arrangements across the transport portfolio and to ensure that relevant legislation is clear and fit for purpose.
I commend the Bill to the house.
James NEWBURY (Brighton) (10:39): I move:
That the debate be adjourned.
Motion agreed to and debate adjourned.
That the debate be adjourned for 13 days.
James NEWBURY (Brighton) (10:39): Can you believe – I cannot believe, and I am sure that Victorians cannot believe – that the government is attempting to ram another bill through this place. I hear the government members shouting across the chamber that they have heard this before. They have heard this before; that is right. They have heard this before because the government keeps trying to ram bills through this place. Let me tell you an interesting statistic: this chamber of Parliament in this term has passed 26 bills, and before today – it is obviously one more now – we have had this debate on seven items. A quarter of the bills, the government has tried to ram through this place – a quarter. It has not happened once. It has not happened twice. A quarter of the bills the government has put to this place they have not wanted the community to see. They have not wanted the community to be given the time that they deserve to see them.
It is not too much to ask for this government to consider the Westminster tradition of allowing a Parliament to consider a bill for two weeks before it is rammed through the Parliament – before the government uses its majority numbers to ram it through the Parliament. To think that we are now at the point where for one quarter of the bills we have had this debate and called out the fact that the government keeps trying to hoodwink the Victorian community, and the community now are speaking out about it. We saw it only two weeks ago with the introduction of two new pernicious bills, through the State Taxation Acts and Other Acts Amendment Bill 2023, which will be dealt with, I presume, tomorrow by the government. It was not just the coalition who called that out; in that circumstance industry called out the fact that they had been surprised by two new taxes with no notice. In fact if reports are correct, not even the Premier was aware, but I digress.
It is a quarter of the bills. I will say that again: 26 bills have been passed, I have been advised by the good assistants who help us in this place, this term in this Parliament’s lower house, and we have had this debate seven times before today. Now it is eight times. So for a quarter of the bills the government has come in and said, ‘You know what, we know there’s been an 80-year tradition not just in Australia but around the world in terms of laying a bill on the table for two weeks so that the community and affected stakeholders can see it and read it.’ The Transport Legislation Amendment Bill 2023 could be a set of good measures. It might well be. Who would know? The hardworking attendants, who I say do an incredible job in this place, have just handed me a copy of the bill – I believe my colleagues might have been handed a copy too – and I see it is 170 pages. They have not even seen it yet. I am handing it down to my colleagues. It is 170 pages of new laws – 170 new pages. It is only reasonable that a government say to the community, ‘Here’s what we’re proposing to do. You can have an opportunity to read it. Let us know what you think, because you know better than we know.’
What we do know is that when governments try to push things through, they get it wrong. And haven’t we seen that with the High Court today striking down the electric vehicle tax. The High Court has intervened on this government and said you got it wrong. How embarrassing. How outrageously embarrassing that the High Court has been forced to intervene and slam down this government for what they proposed to do. That is why all we ask for is that the government provide what they propose to do to the community to consider. It is not too much to ask for. That is why the coalition will be opposing again another instance of the government trying to ram through another set of measures before the community have rightly had time to see it.
Nina TAYLOR (Albert Park) (10:44): Yet again we are seeing strong embellishment from the opposition – ‘rammed through’, ‘hoodwinked’. I thought these bills were coming through the house for people to debate, but maybe I was wrong. Maybe there is something wrong with the live stream. I thought the community could actually see debates in Parliament, but apparently the opposition are not sure about this. We could check with the attendants. We could check with Hansard and broadcasting to make sure it is all happening if you are not sure about that. I would have thought there is absolutely nothing preventing the community from seeing us debate bills in this Parliament, but maybe I was wrong. Maybe we should get some clarification on that and inform the opposition of this. If you do wish to embellish, we are going to take it up – just putting that on the notice paper. Now, 13 days – you have not got time to read the bill? Better get started now. Crack on. I have confidence you can do it. Get into it or –
James Newbury: On a point of order, Deputy Speaker, the word ‘you’ is a reflection on your good self, and I would ask you to ask the member to refer to members by their correct titles.
The DEPUTY SPEAKER: I encourage all members to not use the word ‘you’. There is a little wriggle room in the concept, which I believe you used yourself, member for Brighton, but yes, it is a very good point.
Nina TAYLOR: Duly noted. I guess both sides should respect that particular rule. Anyway, duly noted – through you, Deputy Speaker, indeed. We have this bill, and the opposition are frightened that they cannot get through it in the next 13 days. They are not able to read the bill. That is just not enough time for anyone on that side to be able to acquit the amendments. I am very sorry for them, so maybe we can help them out. I am sure there are plenty of advisers who would be happy to chat to them about it. I am sure there are ways around this. I thought that if they had got to this Parliament, they would be equipped to be able to read through a bill, but if that is something they cannot do, well, I am sorry –
James Newbury: On a point of order, Deputy Speaker, this is a procedural motion. It is not an opportunity for members to reflect on each other, and I would ask you to bring the member back to the question.
The DEPUTY SPEAKER: There is no point of order. There was no reflection on a member, and it is a matter for debate.
Nina TAYLOR: I was simply referring to the issue raised about being able to transact the bill over the next couple of weeks, so that is 13 days. I would like to think that all members in this chamber would be perfectly capable of that. It is part of the job to be able to read a bill in due course in preparation for presenting to Parliament, but if the opposition are not capable of that particular task, well, I am sorry, but that is part of the role.
James Newbury: On a point of order, Deputy Speaker, I take that as a personal reflection. I would ask you to ask the member to withdraw.
The DEPUTY SPEAKER: There was no reflection on an individual member. There is no point of order.
Nina TAYLOR: I am simply taking up the issue of the time frame within which to transact a bill. I am not reflecting on any individual member. I am just suggesting that there are certain requirements of members of Parliament, and part of those requirements is transacting bills in this house.
I was pleased, though, that the opposition were referring to our tremendous reform program and the bills that we have been able to transact openly in front of each other with everyone having the opportunity to debate and rebut in this house with a live stream to the community. I just want to make it absolutely clear: no-one wants to hide any bill. We are very proud of the reforms. We are loud and proud of the reforms that we transact in this Parliament, so on the contrary to what has been suggested by the opposition, no-one is trying to ram anything through. No-one is trying to hide anything from the community. On the contrary, we stand by the reforms that we put forward in this chamber, and we are very glad if you want to announce them to the community as well – all the better. We embrace this because that is what democracy is all about.
I proffer that there is gross exaggeration being put forward – embellishment, exaggeration – by suggesting we are hoodwinking the community. You could, conversely, say that that was casting aspersions on us if you were going to debate that issue. I will not, but I am just putting it out there that certain points were put against the government; hence it is within our remit to be able to rebut those propositions. It is only fair and reasonable.
Danny O’BRIEN (Gippsland South) (10:49): I am not pleased to rise and speak on this motion again, because we are, frankly, getting a bit sick of it on this side, and I am sure those opposite are too. But there is a very simple solution to this: have some respect for this chamber, have some respect for the people of Victoria and have some respect for the stakeholders involved with this piece of legislation. And do not be surprised, as each of them over on the other side seem to be, every time we speak against these 13-day resolutions. Why do you think we do it? We do not argue for the sake of arguing. We know very well the modus operandi of this government: if they move to 13 days and we stop objecting to it, then what happens? Then they will just start to introduce bills on the Thursday and move for 12 days. And they will start to say, ‘Let’s just do –
Danny O’BRIEN: We have had that, member for Brighton. We have had bills rushed through with one or two days notice that we did not even get to see. That is the reason that we make what would seem to the average member of the public to be a frivolous objection – what does one day matter. Well, one day does matter when it becomes two days and then three days and then four days. It is again a reflection of the lack of respect that the government has for the traditions of this Parliament, for the forms of this Parliament, for the Westminster system and for the people who would be interested in this bill.
I am interested in the comments of the member for Albert Park. This comes from every speaker on the government side when this debate comes up – ‘Don’t you have time to read it? Can’t you read that fast?’ How many members of the government backbench up there are actually reading every bill that they speak on? Have you actually read every bill? I want honest answers, because we know how it works in government – you do not read the bill. You might get a briefing at caucus before the bill is introduced, if you are lucky. I suspect you do not even get that – ‘they’ do not even get that, sorry, Deputy Speaker. ‘When it comes to debating it, here are some Premier’s private office talking points, here are the ministerial talking points – go your hardest.’ We know. We listen to what they say. It is basically the same every time. You get told, ‘Here’s the bill. This is what we’re doing. Get up and speak in favour of it.’ So to suggest to the opposition ‘Oh, well, you haven’t got time to read it because you can’t read fast enough’ or ‘You don’t really understand what’s going on’ – have a bit of respect for the people of Victoria who are also not in the caucus briefings, who are also not getting the talking points and being told what to say. They need to know what this is. Now, this is – what was it, member for Brighton – 171 pages, this legislation. It has at least a five-page second-reading speech alone. I did listen to the minister introducing it and first reading it yesterday. It amends multiple pieces of legislation – one, two, three, four, five, six pieces of legislation and other acts on the end of it, so more than six other pieces of legislation. I can wager you, Deputy Speaker, that not one single person on the government benches, probably even including the minister, will read the full 171 pages of this bill as the shadow minister will have to do, as the stakeholders will have to do and as members in the other place will probably have to do if they want to understand this bill. But no, they say, ‘No, no, just get on with it. What are you worried about? Trust us. We’ve got plenty of time.’
I might add, too, that there is no particular rush with this legislation. This is an issue that was dealt with by the Parliament earlier this year through a private members bill in the other place. Both the government and the opposition opposed changes to legalising cannabis for drivers, and this may well be good legislation. I certainly had an open mind at the time, but 171 pages for a very serious matter like road safety is being rushed through and they are saying trust us, we have got it all right. As the member for Brighton said, this government constantly – in fact the bill that we will be debating in a moment contains a number of patch-ups, a number of amendments, to things that were missed or fixed or were not done correctly the first time. Most likely there will be something in this too, and to not give the community the full traditional time period to actually go through a 171-page bill just again shows the lack of respect that the government has for the Parliament, for this chamber, for the people of Victoria and for the stakeholders who will be interested in this. The government should have more respect for the community and have more respect for this Parliament, and they should be on notice that if the government continues to do this, the opposition will continue to oppose it, as we do today.
Anthony CIANFLONE (Pascoe Vale) (10:54): It is an absolute pleasure to rise and speak on this government business procedural motion, and to follow on from the member for Albert Park with her very eloquent and fantastic contribution around the need to progress with this bill. In doing so let us just set the facts on the table here very straight from the outset. We are the Victorian Labor government that won the election in November 2022. We have a mandate to deliver on what we promised the Victorian people at the election, and inherent in that is our commitment – and all the commitments we have delivered since 2014 and 2018 – now, thereafter, from 2022. One of those landmark reforms, which a member earlier spoke about – in opposition to, actually – was in relation to medicinal cannabis, a landmark reform that we introduced here in this state, which we should be so proud of and which people have been calling for for so long. This is not a new debate, this is not a new issue, this is not something that has just come up, as you allege, in a 13-day period. This is something that the community has been calling for for a very, very long time. If you are telling me –
The DEPUTY SPEAKER: Order! Through the Chair.
Anthony CIANFLONE: Deputy Speaker, if the opposition is claiming that this is news to them, that we as a state government are advocating in relation to these issues, then you had better stop reading the Herald Sun. You had better start actually reading factual information –
Danny O’Brien: On a point of order, Deputy Speaker, I ask you to bring the member back to debating the question at hand and remind him that the government actually opposed this type of legislation at the start of the year –
The DEPUTY SPEAKER: Order! Points of order are not opportunities for debate, member for Gippsland South. The member will come back to the procedural motion, but I also counsel him to not reflect on the Chair by using the word ‘you’.
Anthony CIANFLONE: Thank you, Deputy Speaker. Look, the point that I was trying to make simply was that generally, in relation to this debate and in relation to this issue, it is not a new issue. It is not a new debate. It is something we have actually been working on for some time, and this builds on previous reforms around medicinal health policy, which people in the community have been calling for for a long time. We delivered on that commitment.
Let us look at the facts, not the hyperbole and false narrative being peddled by those opposite. Look at the facts. I refer the opposition to the media release that was put out earlier this week in relation to this bill, which again was forewarning, foreshadowing that this bill was coming to the Parliament, so it is technically more than 14 days that this has been on Parliament’s agenda. Since we introduced those medicinal cannabis reforms we have seen an increase of more than 700 per cent in the number of patients prescribed medicinal cannabis across Victoria. All we are trying to do with this bill is reflect the fact that that 700 per cent increase in patient numbers that are accessing medicinal cannabis also drive on the roads. They are also commuters. Following on from that reform there has been ongoing advocacy from the community, including in my community. I have been approached by many residents in my community who access medicinal cannabis – across Pascoe Vale, Coburg and Brunswick West – and have been calling for some sort of provision in the legislation to be made to accommodate their medicinal needs as part of their commute. That is what this bill is seeking to do.
It is actually even more generous than that, in terms of an opposition perspective. It is a trial. We are talking about a trial, so when the opposition turn around and start talking about ‘We need to consult. We need to go and talk to more people. We need to –
Cindy McLeish: On a point of order, Deputy Speaker, this is a very narrow procedural debate. It seems that the member on his feet has now started to debate the bill and seems to know a lot more about it than most others.
The DEPUTY SPEAKER: Thank you. The member was just making it relevant to the adjournment, but, yes, I counsel all members to stick to the procedural motion of the question of the adjournment.
Anthony CIANFLONE: Thank you, Deputy Speaker. In my humble opinion the only thing narrow is the thinking of the opposition, not so much this reform here. But it is a trial we are talking about, and they are opposing – they are actually wanting to prevent the government – a bill that will introduce a trial which will give ample time –
James Newbury: On a point of order, Deputy Speaker, with respect I know the member is new; he does not understand clearly what is happening. There is a –
The DEPUTY SPEAKER: The point of order is?
James Newbury: On relevance, there is a question before the Chair, and the member is debating another matter, which he is mistaken about as well.
The DEPUTY SPEAKER: The member for Pascoe Vale had started to debate the bill. He must debate the adjournment.
Anthony CIANFLONE: The opposition say 13 days is not enough. In 13 days JFK solved the Cuban missile crisis. That is all.
Cindy McLEISH (Eildon) (10:59): I too join this very narrow procedural debate, and again it is not much fun to have to be up here again continuing to prosecute the same arguments because the government continues to treat this house with such disrespect. We just had the member for Pascoe Vale begin his contribution by saying, ‘We won the election. Basically we can do whatever we want’. Well, that is not the case. There are customs and forms of this house that need to be respected. I can say that this is absolutely what has not happened in this case again.
Now, two sitting weeks in a row we have had the same minister request 13 days. Last sitting week it was for the Gambling Legislation Amendment Bill 2023, and today it is for the Transport Legislation Amendment Bill 2023. So I am trying to join the dots here. I am not sure if it is the minister who is the one who is disorganised so as not to be able to bring these on to allow the customary 14 days adjournment of debate or whether it is the Leader of the House or the government as a totality being in a bit of a shambles and in disarray, because we know, we expect and for 90-odd years – since 1932 – it has been that pretty well we have had that two-week period of adjournment. The government now thinks that at its whim it can change it from two weeks down to 13 days. We have had six days. We had a one-day period of adjournment for the State Taxation Acts and Other Acts Amendment Bill 2023, which was the most outrageous and unexpected adjournment period from the point where it was not something that had been agreed with previously or required absolute urgency.
In those instances where it is urgent, where the opposition have been briefed and have agreed to it, that is fine, because we usually will understand where there are those specific areas and reasons. Usually that has been related to local government and we have been very agreeable. But we have been landed with a bill still hot off the press – a huge bill, quite thick. It is an inch thick, 170 pages plus the rest – plus the bit beforehand. We have got the explanatory memorandum, which is another 80 pages. We have got 170 pages of the bill, so there is a lot to go through, but again I need to remind the government benches that it is not just us that have to go through the bill. As the government, the members who speak on the bills do not go through all of the clauses. They are given –
Members interjecting.
Cindy McLEISH: We have been in government, and you get your speaking notes. We know how it works. But when we have got to go through it, and when you have got a bill that is as thick as this –
Cindy McLEISH: I momentarily lost my train of thought there. This is a considerable tome. It is quite weighty, and the stakeholders need to go through this. And given that I have just been listening to some people raise the topic of the bill about medicinal marijuana, I think that there will be a lot of community input and a lot of people who want to have a look at it and understand and realise why it is important or perhaps where it is flawed, and we need the support to do that from those community stakeholders.
I think I have mentioned before that the stakeholders are not always able to come back in the period of time required for us to make our initial decision on whether we are going to support a bill or oppose a bill. That requires some work from our part as well, and we need to get that third-party feedback because we want to make sure that we are representative of the community and not just saying ‘We’ve got the solution for you’, which is what this government tends to do quite a lot. In fact then they have got to come back a couple of times because the solution that they have proposed is not the right one or is not quite right. They have had to come back and tweak things, and we know the more that it needs tweaking, the more they have got things wrong. We like to have that extra day to make sure that the stakeholders that are involved in this can do their due diligence. So it is not just us that you are treating with disrespect and the chamber that you have been treating with disrespect but the stakeholders. I am sure that the minister will be disappointed to think that her stakeholders may have contrary views to her or may say to us that they have not even been listened to. We want to make sure that we have that period of time; hence a 14-day adjournment is what is required.
Assembly divided on motion:
Ayes (50): Juliana Addison, Jacinta Allan, Colin Brooks, Josh Bull, Ben Carroll, Darren Cheeseman, Anthony Cianflone, Sarah Connolly, Chris Couzens, Jordan Crugnale, Lily D’Ambrosio, Steve Dimopoulos, Paul Edbrooke, Matt Fregon, Ella George, Luba Grigorovitch, Bronwyn Halfpenny, Katie Hall, Paul Hamer, Martha Haylett, Mathew Hilakari, Melissa Horne, Natalie Hutchins, Lauren Kathage, Sonya Kilkenny, Nathan Lambert, Gary Maas, Alison Marchant, Kathleen Matthews-Ward, Steve McGhie, Paul Mercurio, John Mullahy, Tim Pallas, Danny Pearson, Pauline Richards, Michaela Settle, Ros Spence, Nick Staikos, Natalie Suleyman, Meng Heang Tak, Jackson Taylor, Nina Taylor, Kat Theophanous, Mary-Anne Thomas, Emma Vulin, Iwan Walters, Vicki Ward, Dylan Wight, Gabrielle Williams, Belinda Wilson
Noes (30): Jade Benham, Roma Britnell, Tim Bull, Martin Cameron, Annabelle Cleeland, Chris Crewther, Gabrielle de Vietri, Wayne Farnham, Sam Groth, Matthew Guy, Sam Hibbins, David Hodgett, Emma Kealy, Tim McCurdy, Cindy McLeish, James Newbury, Danny O’Brien, Michael O’Brien, Kim O’Keeffe, John Pesutto, Tim Read, Richard Riordan, Brad Rowswell, Ellen Sandell, David Southwick, Bridget Vallence, Peter Walsh, Kim Wells, Nicole Werner, Jess Wilson
Motion agreed to and debate adjourned until Tuesday 31 October.