Thursday, 12 September 2024
Bills
Roads and Road Safety Legislation Amendment Bill 2024
Roads and Road Safety Legislation Amendment Bill 2024
Introduction and first reading
The PRESIDENT (18:26): I have received the following message from the Legislative Assembly:
The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Road Safety Act 1986, the Melbourne City Link Act 1995, the EastLink Project Act 2004, the Road Safety Camera Commissioner Act 2011, the West Gate Tunnel (Truck Bans and Traffic Management) Act 2019, the North East Link Act 2020 and the Marine (Drug, Alcohol and Pollution Control) Act 1988 and for other purposes.’
That the bill be now read a first time.
Motion agreed to.
Read first time.
Harriet SHING: I move, by leave:
That the second reading be taken forthwith.
Motion agreed to.
Statement of compatibility
Harriet SHING (Eastern Victoria – Minister for Housing, Minister for Water, Minister for Equality) (18:27): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
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 Roads and Road Safety Legislation Amendment Bill 2024 (the Bill).
In my opinion, the Bill, as introduced to the Legislative Council, is compatible with the human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.
Overview of the Bill
The Bill amends the Road Safety Act 1986 (the Act) to:
• Enforce the no-truck zone offence currently in s 65BA(1) of the Act through the use of a new type of camera (no-truck zone camera) and adding the offence to the operator onus scheme in Part 6AA of the Act;
• Amend the registration number rights scheme to introduce age limits for the holders of such rights, clarify the scope of the scheme and allow for the imposition of fees for the transfer of registration number rights;
• Amend terminology relating to accessible parking to be more inclusive;
• Provide for the refunding of penalty reminder notice fees, collection fees and enforcement warrant fees, where an extension of time has been granted to deal with an infringement notice;
• Clarify that transport safety infringements may be subject to the Children, Youth and Families Act 2005; and
• Provide for digital driver licences and learner permits.
The Bill also makes consequential amendments to the Road Safety Camera Commission Act 2011 and amends the Marine (Drug, Alcohol and Pollution Control) Act 1988 to provide for the refund of infringement penalties and related fees in respect of alcohol related offences committed while in charge of a vessel.
Finally, the Bill also makes amendments to the Melbourne City Link Act 1995, the Eastlink Project Act 2004, the West Gate Tunnel (Truck Bans and Traffic Management) Act 2019 and the North East Link Act 2020 to effect the refund of various fees where an extension of time has been granted to deal with an infringement notice.
Human rights issues
The following rights are relevant to the Bill:
• Right to equality (s 8);
• Right to privacy (s 13); and
• Right to be presumed innocent (s 25(1)).
Right to equality
Section 8(3) of the Charter relevantly provides that every person is entitled to equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. The purpose of this component of the right to equality is to ensure that all laws and policies are applied equally, and do not have a discriminatory effect.
‘Discrimination’ under the Charter is defined by reference to the definition in the Equal Opportunity Act 2010 (EO Act) on the basis of an attribute in section 6 of that Act. Direct discrimination occurs where a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute. Indirect discrimination occurs where a person imposes, or proposes to impose, a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with a protected attribute, but only where that requirement, condition or practice is not reasonable.
Registration number rights
Division 2 of Part 2 of the Bill pertains to registration number rights (as described in s 5AD of the Act) and seeks to introduce an age limitation (to be prescribed by regulation) for the holders of these rights. Clause 12 of the Bill inserts into s 5AC(2) of the Act the requirement for a person to have attained the prescribed age before registration number rights can be sold to them. Clause 14 amends s 5AD(2)(d) of the Act to provide that registration number rights may be transferred only to persons who have attained the prescribed age.
The introduction of an age limitation to the ownership of registration number rights engages the right to equality, in relation to the protection from age discrimination. The amendments constitute direct discrimination against persons who are under the prescribed age, in respect of ownership of registration number rights, and therefore limit the right to equality.
I am of the view, however, that this limit on the right to equality is demonstrably justifiable under s 7(2) of the Charter, in the context of the importance of the purpose of the limitation, its nature and extent, the relationship between the limitation and its purpose, and the availability of any less restrictive means to achieve the purpose that the limitation aims to achieve. While the exact prescribed age will be set by future regulation, the policy intention of these amendments is to mirror the age restriction on eligibility to be the registered operator of a vehicle and so prevent a person who is under the prescribed age from buying or inheriting registration number rights, when they are not yet able to register a vehicle in their name. This age restriction seeks to ensure consistency between the legal and financial obligations of registered operators of vehicles, such as being responsible for the vehicle and any fees, charges and penalties associated with its use, and ownership of registration number rights, and this ultimately protects road users by ensuring that only those persons who are of sufficient age are able to register vehicles and obtain registration number rights.
The age restriction will achieve its purpose by preventing young people from obtaining registration number rights when they are not yet able to register a vehicle in their name. Further, the restriction is temporary; a person may purchase or inherit registration number rights once they attain the prescribed age. While I note that the prescribed age (and any resulting interference with rights) will be determined by the content of future regulations, these will be subject to the requirement for the Minister to prepare a human rights certificate justifying any resulting limitation on the equality right. In my view, there is no less restrictive alternative to the imposition of an age restriction in order to prevent persons who have not attained the prescribed age from obtaining registration number rights when they are not yet able to register a vehicle in their name.
As such, in my view, the age restriction provision is reasonable and justifiable on the basis that it prevents ownership of registration number rights by persons who have not attained the prescribed age and who are not yet able to register a vehicle. I therefore consider that Division 2 of Part 2 of the Bill is compatible with the Charter.
Promotion of equality rights
The amendment to the language regarding accessible parking in clauses 18 to 20 of the Bill promotes the right to equality under s 8 of the Charter by ensuring terminology in the Act is inclusive with regard to persons living with a disability.
Right to privacy
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.
Digital driver licences and learner permits
Clause 26 inserts new s 18ba into the Act, which provides that the Secretary to the Department of Transport and Planning may make a copy of a digital driver licence or learner permit in order to check its validity. Clause 40 of the Bill inserts new s 90K(fa) into the Act, which allows the Secretary or a relevant person to use or disclose relevant information, which may include identifying information disclosed as part of an application for a driver licence or vehicle registration, for the purpose of verifying the authenticity of a digital driver licence.
As these amendments concern the use and disclosure of identifying information, they engage the right to privacy. I am of the view that the right is not limited, as any interference is pursuant to a properly circumscribed law, and is not arbitrary, in that the application of the provision will be consistent, predictable and proportionate to the legitimate aim of monitoring that all Victorian vehicle drivers have the appropriate driver licence or learner permit. These powers constitute the minimum necessary steps to verify authenticity of digital driver licences and learner permits, maintain the integrity of the digital driver licencing system and safeguard against fraud.
Further, in relation to making a copy of a digital licence or learner permit, property rights are protected by new s 18ba(2) in clause 26, which provides that the Secretary must not confiscate the electronic device on which the digital licence or permit is displayed, unless authorised by another law.
No-truck zone cameras
Division 1 of Part 2 of the Bill introduces the use of no-truck zone cameras to detect the use of heavy vehicles in declared no-truck zones. Clause 3 inserts a new definition of no-truck zone camera into the Act, while clauses 5 to 8 create evidentiary presumptions where information relevant to a no-truck zone offence is obtained from a no-truck zone camera. These cameras will be trained on a no-truck zone and take photographs and produce messages when heavy vehicles drive in that zone. Accordingly, they may interfere with the right to privacy, which generally protects against surveillance and the collection of information about a person’s movements.
I am of the view, however, that the right to privacy will not be limited by the use of no-truck zone cameras, as their use will be pursuant to a properly circumscribed law and would not be arbitrary. A person has a reduced expectation of privacy in relation to the use of optical devices in a public area such as a road, and particularly in relation to their engagement in a regulated activity posing risks to public safety such as the use of heavy vehicles. The cameras are necessary for the proper enforcement of the no-truck zone scheme, which serves a variety of important public interest purposes, including safer roads and upholding the amenity of residential areas. Any information collected by the cameras will be subject to existing information sharing restrictions as provided by the Act and the Privacy and Data Protection Act 2014.
Accordingly, the no-truck zone camera provisions of the Bill are compatible with the right to privacy under the Charter.
Right to be presumed innocent
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 shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.
Reasonable excuse defence
Digital driver licences and learner permits
Clause 33 of the Bill expands the offences in s 59 of the Act for failure to produce a driver licence or learner permit to the failure to produce or display for inspection a digital driver licence or learner permit. These offences have a ‘reasonable excuse’ exception which may engage the right to be presumed innocent.
By expanding the scope of offences which contain a ‘reasonable excuse’ exception, these amendments increase the circumstances in which an evidential burden is placed on the accused, in that they require the accused to raise evidence of a reasonable excuse for failing to produce the digital driver licence or learner permit. However, the amendments do not transfer the legal burden of proof. Once the accused has pointed to evidence of a reasonable excuse, which will ordinarily be peculiarly within their knowledge, the burden shifts back to the prosecution to prove the essential elements of the offence. Accordingly, I do not consider that an evidential onus of this kind limits the right to be presumed innocent, and that clause 33 is compatible with the right to be presumed innocent under the Charter.
Evidentiary presumptions
A number of clauses in the Bill contain a presumption that in the absence of evidence to the contrary, certain evidence amounts to proof of certain facts. The presumptions are relevant to the right to be presumed innocent because they require that, in proceedings for a relevant offence, a person bears an onus of proof to provide evidence of certain matters.
Driving heavy vehicle in a no-truck zone
Clause 5 of the Bill introduces new s 66A into the Act, which provides that the no-truck zone offence in s 65BA(1) that is detected by a prescribed no-truck zone camera or by a prescribed process is an operator onus offence for the purposes of Part 6AA of the Act. Accordingly, the registered operator of a heavy vehicle will be presumed to be responsible for no-truck zone offences committed using the heavy vehicle, unless they provide evidence that someone else was responsible for the vehicle at that time or explain why they are not able to do so (for example because the heavy vehicle had been stolen).
This clause is relevant to the presumption of innocence in s 25(1) of the Charter because it requires that an accused person bears a burden to adduce (or point to) evidence of certain matters. However, it does not limit the right to be presumed innocent as it only places an evidential (rather than a legal) burden upon an accused. Once the accused has adduced (or pointed to) some evidence that they were not responsible for the offence, the onus shifts to the prosecution to prove that they were responsible beyond a reasonable doubt. Courts have generally taken the approach that an evidential onus on an accused does not limit the presumption of innocence.
Even if the clause is considered to limit the right in section 25(1) of the Charter, any such limit is, in my view, reasonable and justified. The clause is necessary to ensure the effective administration of a regulatory scheme designed to protect the public from safety and amenity risks arising from the use of heavy vehicles in residential areas. The use of no-truck zone cameras will support enhanced enforcement of the no-truck zone offence in section s 65BA(1) of the Act, which otherwise depends upon roadside observation by police or authorised officers of the National Heavy Vehicle Regulator. In addition, the nature of any limitation is minimal, as the relevant offence is a regulatory offence enforced by way of fines, not imprisonment.
Clause 6 of the Bill inserts new s 80E into the Act, which provides that for proceedings relating to a no-truck zone offence, evidence that a heavy vehicle was in a no-truck zone on a relevant occasion as indicated or determined by a prescribed no-truck zone camera when used in the prescribed manner, or an image or message produced by a prescribed no-truck zone camera when used in the prescribed manner, is in the absence of evidence to the contrary, proof of that fact.
Clause 7 inserts new s 83B into the Act, which provides that a certificate containing prescribed information from an authorised person certifying certain information obtained from a no-truck zone camera is admissible in evidence in any proceeding, and that in the absence of evidence to the contrary the certificate is proof of the matters stated in it.
Clause 8 inserts a general evidentiary provision into s 84 of the Act that in any proceeding for a no-truck zone offence, an image or message produced by a prescribed no-truck zone camera used to detect an offence when used in a prescribed manner, or an image or message produced by a prescribed process, will in the absence of evidence to the contrary be proof of certain facts such as date, time or location of the alleged offence, or the registration number or general identification mark of the vehicle involved in the offence.
These provisions are relevant to the presumption of innocence as they deem a fact to be proved in the absence of contrary evidence, and thus reduce the prosecution’s burden to prove an accused’s guilt.
However, I do not consider that these clauses limit the right as again they only place an evidential burden on an accused to raise contrary evidence. Once a person has adduced some evidence to the contrary of the assumed fact, the burden of proof shifts to the prosecution to prove the elements of the offence. As previously noted, courts have generally taken the approach that an evidential onus on an accused does not limit the presumption of innocence.
I do not consider there are any less restrictive means reasonably available to achieve the legislative purpose, as it would be impractical to require prosecutors to establish the veracity of no-truck zone camera evidence in relation to every infringement in which the accused elects to have the matter heard in court. These provisions regarding the information produced by no-truck zone cameras are necessary to ensure the effective enforcement of the no-truck zone scheme. They relate to establishing issues that are probabilistically likely to be the case, such as the correct functioning of the cameras and associated technology, which would otherwise require the marshalling of highly technical evidence that would be difficult, lengthy and costly for a prosecution.
I am therefore of the view that these evidentiary presumption provisions are compatible with the right to be presumed innocent under s 25(1) of the Charter.
Hon Harriet Shing MP
Minister for Housing
Minister for Water
Minister for Equality
Second reading
That the bill be now read a second time.
Ordered that second-reading speech be incorporated into Hansard:
The roads and road safety legislation amendment Bill 2024 makes important changes to deliver on the government’s commitment to remove trucks from inner west streets following the opening of the west gate tunnel, facilitates the modernisation of driver licences and learner permits, makes improvements to the custom plates business, and improves the clarity and operation of various transport legislation.
Removing trucks from the inner west
With the west gate tunnel due to open in 2025, thousands of motorists will benefit from a more connected Melbourne every day. However, the tunnel isn’t only about saving time, it is about improving liveability, amenity and health outcomes for residents of the inner west. That is why, as part of the delivery of the west gate tunnel project, the government committed to introducing 24-hour truck bans in the inner west.
The government has also committed $10.2 million in the 2024–25 budget to provide 24/7 camera enforcement for truck bans in the inner west of Melbourne. This bill facilitates the use of cameras as a tool to detect non-compliant trucks and enables enforcement by the department of transport and planning and the national heavy vehicle regulator.
With 24-hour no-truck zones in place in the inner west, an estimated 9,000 trucks will be removed from local streets each day. This means cleaner air, reduced noise and improved health outcomes for local families.
The enforcement of existing truck curfews is reliant upon authorised officers catching drivers breaking the rules red-handed. This enforcement approach is resource intensive and proving to be ineffective, and it will not be sustainable once 24-hour bans come into operation. The bill will introduce a range of measures to support compliance and enforcement of 24-hour truck bans, including by enabling the use of no-truck zone cameras to detect potential offences 24 hours a day, 365 days a year.
The amendments to the Road Safety Act 1986 in part 2 of the bill will enable the use of images captured by the new cameras as evidence. The bill provides that images from prescribed no-truck zone cameras can evidence the fact that a heavy vehicle was in a no-truck zone. The bill also provides that evidence from these cameras is, without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof of the relevant fact on the relevant occasion.
The cameras will use a vehicle recognition system to detect non-compliance. The system distinguishes trucks from cars and delivers photographic evidence of potential non-compliance. Details of heavy vehicles detected in a no-truck zone will be provided to the national heavy vehicle regulator for investigation and, if warranted, enforcement action.
Under the offence the government has already delivered, there are exceptions for trucks with origins and destinations within the no-truck zone area to ensure that local businesses and households can continue to receive and supply goods. Officers of the national heavy vehicle regulator will investigate whether a driver of a heavy vehicle had a legitimate reason to drive through a no-truck zone before taking enforcement action.
The bill will also provide the ability for enforcement officers to issue traffic infringement notices to any driver or operator of a heavy vehicle who unlawfully enters a no-truck zone. If an offence is detected and verified, then an infringement notice can be issued to the registered operator of the vehicle. The bill also prescribes the no-truck zone offence as an operator onus offence under the Road Safety Act 1986, meaning that the registered operator of the vehicle will be liable for the offence unless they nominate the driver of the vehicle at the time of the offence or provide a reason why they are not able to do so.
Supporting the rollout of digital driver licences
In May 2023, this government made a commitment to Victorian drivers that they would have the option to carry their driver licence on their mobile phones by 2024. After a successful trial last year, where more than 15,000 Ballarat residents opted to download a digital licence onto their mobile device, a statewide rollout has already begun. So far, more than 900,000 Victorian drivers have signed up for a digital licence.
This bill provides clarity and certainty for drivers, the community and law enforcement, putting beyond doubt that digital driver licences and learner permits are valid documents under the Road Safety Act 1986. This means that drivers will be able to feel comfortable getting in their cars with just their mobile phone for identification, and not have to worry about whether they have their licence card because they left their wallets, purses or other items at home.
The bill further supports the use of digital driver licences by making it clear that if drivers are asked to produce their driver licence to a police officer, they may show their digital licence on their mobile device. Digital licences are updated in real time, so any changes to a person’s licence status or a change of address will show immediately. This means that, unlike physical licence cards, drivers will not have to return their digital licence if their licence is suspended as the status of the licence will be clearly visible on a digital device.
To protect the rights of Victorians, mobile phones and other electronic devices used to display digital driver licences will not be able to be confiscated, retained or destroyed for any reason under the Road Safety Act 1986. However, this does not prevent police or other authorities from seizing personal property under other laws.
Delivering better custom plates services
In 2022, the joint venture operator, a consortium of aware super, Australian retirement trust and Macquarie asset management, entered a 40-year partnership with government and commenced operations of the former VicRoads registration and licensing business. The joint venture partnership, which generated 7.9 billion dollars upfront for the state, will deliver upgraded customer service systems and better custom plates services for Victorians.
This bill delivers on the government’s commitment to ensure that Victorians are provided better custom plates services. It will enable the joint venture operator to implement new custom plates business models which will help to support its delivery of the VicRoads modernisation process.
The amendments in the bill will allow registration number rights to be sold subject to either an upfront fee or to an ongoing periodical charge, or both. To support the future introduction of ongoing periodical charges, the bill provides that certain rights may be suspended under the regulations if a periodical charge is not paid. The bill will also enable contracts of sale of registration number rights to provide that a fee is payable upon transfer to another person.
Being an owner of registration number rights comes with legal responsibilities. An owner of registration number rights is responsible for the use of the combination and any number plates on which it is displayed. With the future introduction of periodical charges, owners will be subject to ongoing financial obligations. Therefore, the bill introduces a minimum age for persons to whom registration number rights may be sold or transferred. The minimum age, which will be prescribed by the regulations at 16 years of age, is the age at which a person may register a vehicle in their name.
Improving the clarity and operation of transport legislation
The bill also makes a range of minor amendments to the Eastlink Project Act 2004, the Marine (Drug, Alcohol and Pollution Control) Act 1988, the Melbourne City Link Act 1995, the North East Link Act 2020 and the West Gate Tunnel (Truck Bans and Traffic Management) Act 2019, to improve the administration of infringement processes by clarifying that all fines and associated costs are to be refunded if a person has been granted an extension of time to deal with an infringement notice.
The bill also modernises the language used in relation to the accessible parking permit scheme contained in the Road Safety Act 1986. The act has fallen out of step with current best practice in relation to accessibility and inclusion. The use of the term ‘accessibility’ is preferred, as it helps reinforce the message that the transport network should be accessible for all Victorians.
I commend the bill to the house.
Georgie CROZIER (Southern Metropolitan) (18:27): I move:
That debate on this bill be adjourned for one week.
Motion agreed to and debate adjourned for one week.