Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017

Authorised by the Chief Parliamentary Counsel Authorised Version i Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 TABLE OF PROVISIONS Section Page Chapter 1—Preliminary 1 Part 1.1—Purposes 1 1 Purposes 1 Part 1.2—Commencement 5 2 Commencement 5 Chapter 2—Amendment of Road Safety Act 1986 and other road legislation 6 Part 2.1—Preliminary 6 3 Principal Act 6 Part 2.2—Drink and drug driving offences 7 Division 1—Disqualification and alcohol interlock conditions 7 4 Definitions 7 5 New section 23A inserted 8 6 New section 23B inserted 8 7 New section 25A inserted 9 8 New section 31KB substituted 10 9 Provisions about cancellation and disqualification 14 10 Previous convictions 15 11 Zero blood or breath alcohol 15 12 Cancellation of licence or permit for drink-driving infringements 16 13 Amendment of Schedule 1 18 Division 2—Behaviour change program for drink and drug driving offences 18 14 Definitions 18 15 Effect of suspension of licence or permit 19 16 Application for licence eligibility order 19 17 Sections 31C and 31D repealed 19 18 Section 31E amended 20 -- 1 of 159 -- Section Page ii Authorised by the Chief Parliamentary Counsel 19 Sections 31F and 31G repealed 21 20 Procedure on hearing of application for licence eligibility order 21 21 Section 49A repealed 22 22 Administrative scheme for removal of alcohol interlock condition 22 23 Alcohol interlock condition removal order 23 24 New Part 5A inserted 25 25 Definitions for Part 6AB 38 26 Repeal of Schedule 1A 38 Division 3—Increased penalties for drug driving offences 39 27 Provisions about cancellation and disqualification 39 28 Suspension of licence or permit for excessive speed infringement or drug-driving infringement 39 Division 4—Drinking while driving infringements 39 29 Definitions 39 30 Traffic infringements 39 Part 2.3—Impoundment, immobilisation and forfeiture of motor vehicles 40 31 Definitions for Part 6A 40 32 Section 84E repealed 43 33 Impoundment or immobilisation order 43 34 Forfeiture order 44 35 Application for an impoundment or immobilisation order or a forfeiture order 45 36 Notice of application 45 37 Notice where 2 or more offences charged 45 38 Direction not to transfer registration or register motor vehicle 45 39 Application to register financing statement after giving notice of intention to sell etc. 45 Part 2.4—Driver licences 46 40 Offence if driver not licensed 46 41 New section 18AA inserted 48 42 New sections 18B and 18C inserted 49 43 Cancellation, suspension or variation of licences and permits by Corporation 50 44 Power of Corporation to require tests to be undergone 51 45 Disqualified person must not apply for licence or permit 51 46 Offence to drive while disqualified etc. 51 47 Offence to employ unlicensed driver 51 48 New section 32A inserted 53 49 Interpretation 53 -- 2 of 159 -- Section Page iii Authorised by the Chief Parliamentary Counsel 50 Cancellation of licence or permit for drink-driving infringements 54 51 Suspension of licence or permit for excessive speed infringement or drug-driving infringement 54 52 Schedule 5 amended 54 Part 2.5—Demerit points scheme 55 53 Power of court to cancel, suspend or vary licences and permits 55 54 Demerit point option notice 55 55 Extended demerit point period 55 56 Person elects to extend demerit point period and incurs no additional demerit points 56 57 Person elects to extend demerit point period and incurs additional demerit points 56 58 New section 41A inserted 57 59 Suspension of driver licence or learner permit under this Division 59 60 New section 44 substituted 61 61 Appeal to Magistrates' Court 62 Part 2.6—Service of notices 63 62 Person fails to elect to extend demerit point period 63 63 Suspension of driver licence or learner permit under this Division 63 64 Sections 60, 60A and 84BE amended 63 65 Service of notices 63 Part 2.7—Other amendments 65 Division 1—Motor cycle driver licence conditions 65 66 Driver licences 65 67 Zero blood or breath alcohol 65 68 General duty of driver or person in charge of motor vehicle 66 Division 2—Evidence of power to mass ratio 66 69 Definitions 66 70 General evidentiary provisions 67 Division 3—Miscellaneous 67 71 Definitions 67 72 Power to inspect motor vehicles and trailers 69 73 Definitions for Division 3 of Part 2 69 74 Section 63B amended 70 75 Certain matters indicated by prescribed road safety cameras are evidence 70 76 Evidence relating to prescribed road safety cameras 71 77 Schedule 2 amended 71 -- 3 of 159 -- Section Page iv Authorised by the Chief Parliamentary Counsel Part 2.8—Statute law revision 72 78 Definitions 72 79 References to Head, Transport for Victoria 72 80 Obligations of road users 72 81 References to speed 73 82 Definitions for Part 6AB 73 83 Definitions for Part 6A 73 84 Schedule 2 amended 73 Part 2.9—Transitional provisions 74 85 New section 103ZK inserted 74 Part 2.10—Amendment of Road Legislation Further Amendment Act 2016 79 86 Cancellation and disqualification—corresponding interstate drink-driving offence 79 Chapter 3—Amendment of rail legislation 80 Part 3.1—Amendment of Rail Management Act 1996 80 87 Definitions 80 88 New Part 2A of Rail Management Act 1996 substituted 80 89 New section 118B inserted 128 Part 3.2—Amendment of Rail Safety (Local Operations) Act 2006 129 90 Definitions and interpretation 129 91 Safety interface agreements 129 92 Secretary to the Department of Transport is exempt 129 93 Surrender of accreditation 130 94 Definitions—section 70 130 95 Additional offences involving alcohol and drugs 130 96 Additional circumstance when rail safety workers may be convicted or found guilty 130 97 Additional matters for breath analyses 131 98 Transport safety officer or police officer may require drug screening test, oral fluid analysis and blood test 131 99 New sections 86CA to 86CG inserted 131 100 New section 86D substituted 140 101 Rail safety worker may request sample of blood to be taken for analysis 142 102 Blood samples to be taken in certain cases 142 103 Evidentiary provisions—blood tests 143 104 Evidentiary provisions—oral fluid samples 143 105 Approvals 143 -- 4 of 159 -- Section Page v Authorised by the Chief Parliamentary Counsel Part 3.3—Amendment of Rail Safety National Law Application Act 2013 144 106 Disallowance of national regulations 144 107 Part 6 of the Rail Safety (Local Operations) Act 2006 forms part of the Law with modifications 144 Part 3.4—Amendment of Tourist and Heritage Railways Act 2010 145 108 New section 6 substituted 145 Chapter 4—Amendment of other transport related legislation 146 Part 4.1—Amendment of Transport (Safety Schemes Compliance and Enforcement) Act 2014 146 109 General powers on entry or boarding 146 110 Magistrates' Court may extend period of detention of vessel 146 111 Extension of time for compliance with improvement notices 146 112 Service of prohibition notice 147 113 Amendment of prohibition notice 147 114 Certificates confirming that matters that give rise to immediate risks to safety remedied 147 115 Proceedings for offences not affected by prohibition notices or certificates 148 116 When Safety Director may carry out action 148 117 Power of Safety Director to take other remedial action 148 118 Costs of remedial or other action 149 119 Injunctions for non-compliance with notices 149 120 Release on the giving of a safety undertaking 149 Part 4.2—Amendment of Transport Accident Act 1986 150 121 Transport accident charge 150 122 New Division 12 of Part 11 inserted 150 Part 4.3—Amendment of Marine (Drug, Alcohol and Pollution Control) Act 1988 151 123 Subject matter for regulations 151 Part 4.4—Amendment of Port Management Act 1995 152 124 Statute law revision 152 Chapter 5—Repeal of amending Act 153 125 Repeal of amending Act 153 ═════════════ Endnotes 154 1 General information 154 -- 5 of 159 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 † No. 68 of 2017 [Assented to 19 December 2017] The Parliament of Victoria enacts: Chapter 1—Preliminary Part 1.1—Purposes 1 Purposes (1) Subsections (2) to (4) set out the main purposes of this Act. Victoria -- 6 of 159 -- Part 1.1—Purposes Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 2 Authorised by the Chief Parliamentary Counsel (2) Chapter 2 amends the Road Safety Act 1986— (a) to implement reforms aimed at reducing deaths and injuries on Victorian roads including— (i) the cancellation of a driver licence or learner permit and disqualification for a minimum period following a finding of guilt or conviction for any drink-driving offence; and (ii) the imposition of a mandatory alcohol interlock condition on any driver licence or learner permit granted following a disqualification because of a drink-driving offence; and (iii) the introduction of a behaviour change program for persons found guilty or convicted of drink-driving offences and certain other offences; and (b) to introduce other reforms including— (i) increased penalties for drug driving offences; and (ii) the simplification of the vehicle impoundment and forfeiture scheme; and (iii) reforms to the description of, defences to and penalties for, offences relating to unlicensed driving; and (iv) the simplification of the demerit points scheme; and (v) the rationalisation of provisions relating to the service of notices under that Act; and -- 7 of 159 -- Part 1.1—Purposes Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 3 Authorised by the Chief Parliamentary Counsel (c) to make other amendments to improve the operational effectiveness of that Act; and (d) to make other technical amendments. (3) Chapter 2 also amends the Road Safety Act 1986 and the Road Legislation Further Amendment Act 2016 in relation to the imposition of mandatory alcohol interlock conditions in relation to certain interstate offences. (4) Chapter 3 amends— (a) the Rail Management Act 1996 to establish a new rail access regime; and (b) the Rail Safety (Local Operations) Act 2006 to make further provision in relation to the drug and alcohol testing of rail safety workers; and (c) the Rail Safety National Law Application Act 2013 to make a technical amendment to the provision that allows for parliamentary disallowance of the national regulations made under the Rail Safety National Law (Victoria); and (d) the Tourist and Heritage Railways Act 2010 to provide that the Tourist and Heritage Railway Registrar must be an employee of the Public Transport Development Authority. (5) Chapter 4 amends— (a) the Transport (Safety Schemes Compliance and Enforcement) Act 2014 and the Port Management Act 1995 to make minor and technical changes to improve the operation of those Acts, and changes of a statute law revision nature; and -- 8 of 159 -- Part 1.1—Purposes Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 4 Authorised by the Chief Parliamentary Counsel (b) the Transport Accident Act 1986 so that the 28-day grace period for the payment of a transport accident charge applies to a registration of 3 months or more; and (c) the Marine (Drug, Alcohol and Pollution Control) Act 1988 to make minor changes to the provisions of that Act that enable regulations to be made in relation to the storage and provision of blood samples. -- 9 of 159 -- Part 1.2—Commencement Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 5 Authorised by the Chief Parliamentary Counsel Part 1.2—Commencement 2 Commencement (1) This Chapter, Part 2.1, section 84 and Part 4.3 come into operation on the day on which this Act receives the Royal Assent. (2) Section 77 and Parts 2.8 (except section 84), 2.9, 2.10, 4.1, 4.4 and Chapter 5 come into operation on the day after the day on which this Act receives the Royal Assent. (3) Subject to subsections (4) and (5), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (4) If section 4 or 5 or 7 to 30 or a provision of Part 2.3, 2.4 or Division 1 of Part 2.7 or section 72, 74, 75 or 76 or a provision of Chapter 3 or Part 4.2 does not come into operation before 1 November 2018, it comes into operation on that day. (5) If a provision referred to in subsection (3) (other other than a provision referred to in subsection (4)), does not come into operation before 1 January 2020, it comes into operation on that day. -- 10 of 159 -- Part 2.1—Preliminary Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 6 Authorised by the Chief Parliamentary Counsel Chapter 2—Amendment of Road Safety Act 1986 and other road legislation Part 2.1—Preliminary 3 Principal Act In this Chapter, the Road Safety Act 1986 is called the Principal Act. -- 11 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 7 Authorised by the Chief Parliamentary Counsel Part 2.2—Drink and drug driving offences Division 1—Disqualification and alcohol interlock conditions 4 Definitions (1) In section 3(1) of the Principal Act, in paragraph (b) of the definition of drink-driving infringement, for "subsection (1A), (1AB) or (1AC) of section 50" substitute "section 50(1A)". (2) In section 3(1) of the Principal Act insert the following definitions— "Australian driver licence means— (a) a driver licence; or (b) a licence (other than an Australian learner permit) issued under the law of another State or a Territory authorising the holder to drive a motor vehicle on a highway; Australian learner permit means— (a) a learner permit; or (b) an interstate learner permit; corresponding interstate drink-driving offence means an offence against a law of another State or a Territory that the Minister has declared under section 25(1) to correspond to a specified Victorian drink-driving offence;". -- 12 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 8 Authorised by the Chief Parliamentary Counsel 5 New section 23A inserted After section 23 of the Principal Act insert— "23A Corporation must not grant driver licence or learner permit to disqualified driver Except as provided by section 25A or by the regulations, the Corporation must not grant a driver licence or learner permit to a person who— (a) is currently disqualified from driving or from obtaining a driver licence or learner permit under the law of Victoria or another State or a Territory; or (b) has an Australian driver licence or an Australian learner permit that is currently suspended; or (c) is currently disqualified from driving under the law of another country in circumstances that, if they occurred in Victoria, would have resulted in the person being disqualified from driving in Victoria.". 6 New section 23B inserted Before section 24 of the Principal Act insert— "23B Alcohol interlock to be installed prior to grant of driver licence or learner permit subject to alcohol interlock condition (1) This section applies if the Corporation can only grant a driver licence or learner permit to a person that is subject to an alcohol interlock condition. Examples Section 31KA or 31KB applies to the person or the Magistrates' Court has given an alcohol interlock condition direction to the Corporation under section 50AAA in relation to the person. -- 13 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 9 Authorised by the Chief Parliamentary Counsel (2) The Corporation must not grant the driver licence or learner permit to the person unless the person provides to the Corporation a certificate from an approved alcohol interlock supplier certifying that, at the request of the person, the supplier has installed an approved alcohol interlock in a vehicle specified in the certificate. (3) A certificate provided to the Corporation under subsection (2) must be in the form approved by the Corporation.". 7 New section 25A inserted After section 25 of the Principal Act insert— "25A Reduction in period for which a person is ineligible to be granted a driver licence or learner permit (1) This section applies to a person who— (a) is currently disqualified under the law of another jurisdiction from driving or from obtaining a driver licence or learner permit, or a class of driver licence or learner permit, in that jurisdiction because of a corresponding interstate drink-driving offence committed by the person in the other jurisdiction; and (b) would have been eligible for a reduced period of disqualification if the person had resided or remained in the other jurisdiction and had participated or agreed to participate in an alcohol interlock program in that other jurisdiction; and -- 14 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 10 Authorised by the Chief Parliamentary Counsel (c) is not otherwise, in Victoria or another jurisdiction, disqualified from driving or from obtaining a driver licence or learner permit or subject to a suspension relating to a driver licence or learner permit. (2) On the application by the person in accordance with the regulations, the Corporation may reduce the period for which the person is otherwise prevented under section 23A from obtaining a driver licence or learner permit. Note The grant of a driver licence or learner permit by the Corporation to a person to whom this section applies is subject to section 31KB and, unless section 31KB(8)(b) applies, must be made subject to an alcohol interlock condition. (3) In this section— jurisdiction means an Australian State or a Territory.". 8 New section 31KB substituted For section 31KB of the Principal Act substitute— "31KB Administrative scheme for imposing alcohol interlock condition—interstate drink-driving offence (1) This section applies to a person if— (a) the person holds a current licence or permit authorising the person to drive a motor vehicle issued in another State or a Territory that is subject to an alcohol interlock condition and paragraphs (b) and (c) do not apply to the person; or -- 15 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 11 Authorised by the Chief Parliamentary Counsel (b) the person— (i) was prevented under section 23A from obtaining a driver licence or learner permit because the person was disqualified from driving in another State or a Territory in respect of a corresponding interstate drink-driving offence; and (ii) is no longer prevented from obtaining a driver licence or learner permit; or (c) the person— (i) has been disqualified under section 25(3) from obtaining a driver licence or learner permit in respect of a corresponding interstate drink-driving offence; and (ii) has ceased to be so disqualified. Note If the person has committed other offences, the person may be required to obtain a licence eligibility order before a driver licence or learner permit is granted. See section 31A. (2) Subject to subsection (8)(b), a driver licence or learner permit granted by the Corporation to a person to whom this section applies must be made subject to an alcohol interlock condition. (3) The Corporation may impose an alcohol interlock condition under this section on the basis of the application for a driver licence or learner permit made by the person and any matters that appear in records kept by the -- 16 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 12 Authorised by the Chief Parliamentary Counsel Corporation without conducting any hearing or investigation into the matter. (4) A person granted a driver licence or learner permit on which an alcohol interlock condition is imposed under this section cannot apply under section 50AAAB for the removal of the condition during the period (the relevant period) determined in accordance with subsection (5) or (6). (5) For the purposes of subsection (4), the relevant period applying to a person referred to in subsection (1)(a) is the period beginning on the first granting of the driver licence or learner permit and ending on the day on which— (a) the person would have been eligible to apply for the removal of the alcohol interlock condition imposed by the other State or a Territory; or (b) the alcohol interlock condition imposed by the other State or a Territory would have ceased by operation of law— had the person resided or remained in the other State or a Territory. (6) For the purposes of subsection (4), the relevant period applying to a person referred to in subsection (1)(b) or (c) is the period beginning on the first granting of the driver licence or learner permit and ending on— (a) the expiry of the minimum period specified in Column 4 of the table in Schedule 1B that would apply had the person been convicted or found guilty of the Victorian drink-driving offence to which the interstate drink-driving offence has been declared to -- 17 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 13 Authorised by the Chief Parliamentary Counsel correspond by Order made under section 25(1); or (b) if subsection (8) applies—an earlier date determined by the Corporation. (7) For the purposes of subsection (6)(a)— (a) section 50AAA(9) applies in the same way and to the same extent as it would apply for the purposes of section 50AAA and Schedule 1B in respect of the Victorian drink-driving offence referred to in subsection (6)(a); and (b) if the minimum period applying to the Victorian drink-driving offence varies depending on the concentration of alcohol in the person's blood or breath, the minimum period is that which would apply had the person recorded the same concentration of alcohol in respect of the Victorian drink-driving offence as— (i) the concentration of alcohol notified as having been recorded in respect of the person's blood or breath in respect of the corresponding interstate drink-driving offence; or (ii) if, instead of a fixed concentration of alcohol, the Corporation is notified that the concentration of alcohol recorded in the person's blood or breath fell within a range of concentration in respect of the corresponding interstate drink-driving offence—the -- 18 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 14 Authorised by the Chief Parliamentary Counsel concentration of alcohol at the lower end of that range. (8) If a person to whom subsection (6) applies satisfies the Corporation that the person has complied with the requirements of an alcohol interlock condition imposed by another State or a Territory in respect of the corresponding interstate drink-driving offence, the Corporation may determine that— (a) the relevant period ends on an earlier date for the purposes of subsection (6); or (b) a driver licence or learner permit may be granted to the person without an alcohol interlock condition if the alcohol interlock condition imposed by the other State or the Territory was for the same or a longer period than the relevant period that would otherwise apply to the person under subsection (6).". 9 Provisions about cancellation and disqualification (1) For section 50(1) and (1A) of the Principal Act substitute— "(1) On convicting or finding a person guilty of an offence under section 49(1)(b), (f) or (g), the court must— (a) cancel any driver licence or learner permit held by the offender; and (b) whether or not the offender holds a driver licence or learner permit, disqualify the offender from obtaining one for such time as the court thinks fit, not being less than the minimum period of disqualification determined in accordance with subsection (1A). -- 19 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 15 Authorised by the Chief Parliamentary Counsel (1A) The minimum period of disqualification is— (a) for a first offence—the period specified in Column 2 of Schedule 1; or (b) for a subsequent offence—the period specified in Column 3 of Schedule 1— ascertained by reference to the concentration of alcohol in the blood or breath of the offender as specified in Column 1 of that Schedule.". (2) Section 50(1AB) and (1AC) of the Principal Act are repealed. 10 Previous convictions In the table at the foot of section 50AA of the Principal Act, for "Sections 50(1A), (1AB), (1AC)," substitute "Sections 50(1A),". 11 Zero blood or breath alcohol (1) After section 52(1B)(ab) of the Principal Act insert— "(ac) the person had been prevented under section 23A from obtaining a driver licence or learner permit because the person was disqualified from driving in another State or a Territory in respect of a corresponding interstate drink-driving offence and the driver licence or learner permit was issued to the person after the person had ceased to be prevented from obtaining a driver licence or learner permit; or". (2) After section 52(1BA) of the Principal Act insert— "(1BB) This section also applies to a person who is driving or in charge of a motor vehicle while holding a driver licence or learner permit -- 20 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 16 Authorised by the Chief Parliamentary Counsel which authorises the holder to drive such a motor vehicle if— (a) an alcohol interlock condition applies to the driver licence or learner permit; and (b) the alcohol interlock condition has been imposed because at the time the driver licence or learner permit was granted, the person held a licence or permit issued in another State or a Territory that was subject to an alcohol interlock condition.". 12 Cancellation of licence or permit for drink-driving infringements (1) For section 89C(1), (1A) and (2) of the Principal Act substitute— "(1) Any driver licence or learner permit held by a person is cancelled and the person is disqualified from obtaining one for the period set out in subsection (2) or (2A) if— (a) a traffic infringement notice has been issued to the person in respect of a drink-driving infringement; and (b) no notice of objection to the infringement notice has been given and the 28 day period has expired. Note The period for which the person is disqualified from obtaining a driver licence or learner permit is reduced if the person's licence was already suspended in accordance with a notice under section 51(1B) (see section 51(3C)). (2) The period for which the person is disqualified from obtaining a driver licence or learner permit is 3 months if— -- 21 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 17 Authorised by the Chief Parliamentary Counsel (a) the blood or breath alcohol concentration specified in the notice is 0∙05 grams or more but less than 0∙07 grams per 100 millilitres of blood or 210 litres of exhaled air (as the case requires); and (b) at the time of the infringement— (i) the person was 26 years of age or older; and (ii) section 52 did not apply to the person. (2A) In any other case, the period for which the person is disqualified from obtaining a driver licence or learner permit is the period ascertained in accordance with Column 2 of Schedule 1 by reference to the blood or breath alcohol concentration specified in the notice.". (2) In section 89C(4) of the Principal Act, for "subsection (1) or (2)" substitute "subsection (1)". (3) For section 89C(8) of the Principal Act substitute— "(8) A person, other than a person referred to in subsection (3A), who pays a penalty in respect of a drink-driving infringement must, on or before the expiry of the 28 day period, surrender the person's driver licence or learner permit document in accordance with the regulations.". -- 22 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 18 Authorised by the Chief Parliamentary Counsel 13 Amendment of Schedule 1 In Schedule 1 to the Principal Act, for— "less than ·07 6 months 12 months" substitute— "less than ∙05 3 months 12 months ∙05 or more but less than ·07 6 months 12 months". Division 2—Behaviour change program for drink and drug driving offences 14 Definitions (1) In section 3(1) of the Principal Act insert the following definitions— "approved provider— (a) in relation to a behaviour change program, means a person or body approved by the Corporation under section 58J to provide a behaviour change program; and (b) in relation to a safe driving program, means a person or body approved by the Corporation under section 84BP to provide an approved safe driving program; behaviour change program means— (a) a first-stage behaviour change program; or (b) a second-stage behaviour change program; -- 23 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 19 Authorised by the Chief Parliamentary Counsel certificate of completion means a certificate issued by an approved provider of a behaviour change program under section 58R certifying that a person has completed the program; first-stage behaviour change program means a behaviour change program approved by the Corporation under section 58I(1); second-stage behaviour change program means a behaviour change program approved by the Corporation under section 58I(2);". (2) In section 3(1) of the Principal Act, the definitions of accredited agency, accredited driver education program, assessment report and licence eligibility report are repealed. 15 Effect of suspension of licence or permit In section 28A(2) of the Principal Act, for "31C, 31E, 50AAA or 52" substitute "31E, 50AAA, 52 or 58C". 16 Application for licence eligibility order For section 31B(2)(b) of the Principal Act substitute— "(b) complied with the requirements of— (i) subsection (1); and (ii) section 31E, if that section applies to the applicant.". 17 Sections 31C and 31D repealed Sections 31C and 31D of the Principal Act are repealed. -- 24 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 20 Authorised by the Chief Parliamentary Counsel 18 Section 31E amended (1) For the heading to section 31E of the Principal Act substitute— "Persons required to provide certificate of completion of first-stage behaviour change program". (2) For section 31E(1) and (2) of the Principal Act substitute— "(1) Before applying for a licence eligibility order, a person to whom this section applies must provide or cause to be provided to the Magistrates' Court— (a) a copy of any notice from the Corporation under section 58E relating to the offence for which the person has been disqualified; and (b) if the person is required under section 58C or 58F to complete a first-stage behaviour change program— a certificate of completion certifying that the person has completed the first-stage behaviour change program specified in that notice. Note A notice under section 58E must state the particular behaviour change program that the person is required to complete. (1A) The certificate of completion and notice from the Corporation must be provided, or caused to be provided, to the Court within 28 days before applying for the licence eligibility order. -- 25 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 21 Authorised by the Chief Parliamentary Counsel (2) This section applies to a person who has been disqualified under section 50 or 89C in respect of an offence under section 49(1) unless— (a) the person is a person to whom section 31KA applies; or (b) the offence under section 49(1) is an accompanying driver offence.". (3) In section 31E(3) of the Principal Act omit "or 89A(1)". (4) In the note at the foot of section 31E(3) of the Principal Act omit "or 89A(1)". 19 Sections 31F and 31G repealed Sections 31F and 31G of the Principal Act are repealed. 20 Procedure on hearing of application for licence eligibility order (1) For section 31H(b)(iv) of the Principal Act substitute— "(iv) any certificate of completion of a first-stage behaviour change program provided to the Court under section 31E; and". (2) After section 31H(b) of the Principal Act insert— "(c) if the certificate of completion of the first-stage behaviour change program indicates that the applicant was referred to medical or other therapeutic services, the Court may— (i) inquire whether the applicant attended those services; and (ii) have regard to whether the applicant attended or not.". -- 26 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 22 Authorised by the Chief Parliamentary Counsel 21 Section 49A repealed Section 49A of the Principal Act is repealed. 22 Administrative scheme for removal of alcohol interlock condition (1) In section 50AAAB(2) of the Principal Act— (a) in paragraph (c), for "subsection (3)." substitute "subsection (3); and"; (b) after paragraph (c) insert— "(d) if the person is required under the regulations to complete a second-stage behaviour change program—has completed the second-stage behaviour change program specified in the notice given to the person under section 58E.". (2) In section 50AAAB(3) of the Principal Act— (a) in paragraph (a) omit "(other than any specified under item 57AA(f) of Schedule 2)"; (b) paragraph (b) is repealed. (3) After section 50AAAB(3) of the Principal Act insert— "(3A) For the purposes of subsection (3), the data referred to in paragraph (a) of that subsection must include data provided by each approved alcohol interlock supplier who maintained, or authorised a person or body to maintain, the approved alcohol interlock during the period covered by the report.". -- 27 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 23 Authorised by the Chief Parliamentary Counsel (4) After section 50AAAB(4)(b)(ii) of the Principal Act insert— "(iia) if the person is required under the regulations to complete a second-stage behaviour change program— (A) a certificate of completion certifying that the person has completed the second-stage behaviour change program specified in the notice under section 58E; or (B) a statement that the certificate is to be sent directly to the Corporation by the approved provider of the program; and". 23 Alcohol interlock condition removal order (1) For section 50AAB(4B)(a) of the Principal Act substitute— "(a) deal with or determine an application for an alcohol interlock condition removal order unless it is satisfied that— (i) the applicant has complied with the requirements of subsections (4A) and (5); and (ii) if the applicant is required under the regulations to complete a second-stage behaviour change program—the applicant has completed the second-stage behaviour change program specified in the notice given to the applicant under section 58E; or". -- 28 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 24 Authorised by the Chief Parliamentary Counsel (2) In section 50AAB(5) of the Principal Act— (a) for "an accredited agency" substitute "the Corporation or a prescribed person or body"; (b) in paragraph (ab) omit "(other than any specified under item 57AA(f) of Schedule 2)"; (c) for paragraph (b) substitute— "(b) includes an assessment by each approved alcohol interlock supplier who maintained, or authorised a person or body to maintain, the approved alcohol interlock during the period referred to in paragraph (a) on the extent to which the person complied with the manufacturer's instructions for using the approved alcohol interlock.". (3) In section 50AAB(6) of the Principal Act— (a) in paragraph (b)(iv), for "subsection (5)." substitute "subsection (5); and"; (b) after paragraph (b) insert— "(c) if a certificate of completion of a second-stage behaviour change program indicates that the person was referred to medical or other therapeutic services, the court may— (i) inquire whether the person attended those services; and (ii) have regard to whether the person attended or not.". -- 29 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 25 Authorised by the Chief Parliamentary Counsel 24 New Part 5A inserted After section 58B of the Principal Act insert— "Part 5A—Behaviour change program Division 1—Requirement to complete behaviour change program 58C Requirement to complete first-stage behaviour change program (1) The Corporation must not issue a driver licence or learner permit to a person whose driver licence or learner permit is cancelled, or who is disqualified from obtaining a driver licence or learner permit, on conviction or on being found guilty of an offence specified in subsection (2) unless the Corporation is satisfied that the person has completed the first-stage behaviour change program specified in the notice under section 58E. (2) For the purposes of subsection (1), the following offences are specified— (a) an offence under section 49(1), other than an accompanying driver offence; (b) any of the following offences committed while the person was under the influence of alcohol or drugs, or both— (i) a serious motor vehicle offence, within the meaning of section 87P of the Sentencing Act 1991; -- 30 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 26 Authorised by the Chief Parliamentary Counsel (ii) an offence under section 319AA of the Crimes Act 1958; (iii) stealing or attempting to steal a motor vehicle. Note Section 28A(2) provides that a person whose driver licence or learner permit is suspended by force of section 89(4) of the Sentencing Act 1991 is not disqualified for the purposes of this section. (3) If— (a) a person is convicted or found guilty of— (i) a drug driving offence referred to in section 89D; or (ii) an offence referred to in section 89(4) of the Sentencing Act 1991; and (b) the person's driver licence or learner permit is suspended as a result of that conviction or finding of guilt— the Corporation must cancel any driver licence or learner permit held by the person unless it is satisfied that the person has completed the first-stage behaviour change program specified in the notice under section 58E within the period specified in that notice. (4) A person— (a) whose driver licence or learner permit is cancelled under subsection (3); or (b) who, if the person had held a driver licence or learner permit at the relevant time, would have had that driver licence or learner permit cancelled under subsection (3)— -- 31 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 27 Authorised by the Chief Parliamentary Counsel is disqualified from obtaining a driver licence or learner permit until the Corporation is satisfied that the person has completed the first-stage behaviour change program referred to in that subsection. (5) Subsections (1) and (3) do not apply if, under the regulations, the person is not required to complete a first-stage behaviour change program. (6) If a person is charged with an offence under section 49(1) and on the hearing the court releases the person on an undertaking being given by the person under section 75(1) of the Sentencing Act 1991, the court must— (a) attach to the undertaking a condition that the person completes a first-stage behaviour change program; and (b) notify the Corporation of the undertaking. 58D Requirement to complete second-stage behaviour change program (1) The regulations may require a person to complete a second-stage behaviour change program before the person may apply for the removal of an alcohol interlock condition imposed on the person's driver licence or learner permit under this Act. (2) A requirement referred to in subsection (1) may be prescribed by the regulations to apply to— (a) all persons whose driver licence or learner permit is subject to an alcohol interlock condition imposed under this Act; or -- 32 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 28 Authorised by the Chief Parliamentary Counsel (b) a class of persons whose driver licence or learner permit is subject to an alcohol interlock condition imposed under this Act. 58E Corporation to notify person of behaviour change program (1) The Corporation must give notice in accordance with this section to the following— (a) a person who is required to complete a first-stage behaviour change program before the person may apply for a licence eligibility order under section 31B; (b) a person who is required under section 58C(1) or 58F(2)(a) to complete a first-stage behaviour change program before the Corporation may issue a driver licence or learner permit to the person; (c) a person who is required under section 58C(3) or 58F(2)(b) to complete a first-stage behaviour change program within a specified period; (d) a person who is required to complete a first-stage behaviour change program as a condition of an undertaking given by the person under section 75(1) of the Sentencing Act 1991; (e) a person who is required under the regulations to complete a second-stage behaviour change program before the person may apply under section 50AAB or 50AAAB for -- 33 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 29 Authorised by the Chief Parliamentary Counsel the removal of an alcohol interlock condition imposed on the person's driver licence or learner permit under this Act. (2) The notice must be in writing and— (a) state the behaviour change program that the person is required to complete; and (b) contain the prescribed information; and (c) in the case of a person referred to in subsection (1)(c), state— (i) the date (being not less than 3 months after the date of the notice) by which the person must complete the behaviour change program; and (ii) that if the person fails to complete the behaviour change program before that date, the Corporation will cancel any driver licence or learner permit held by the person and the person will be disqualified from obtaining a driver licence or learner permit until the person completes the program. 58F Behaviour change program for interstate offences (1) This section applies to a person to whom section 31KB applies. Note Section 31KB applies to a person who holds a licence or permit issued in another State or a Territory that is subject to an alcohol interlock condition or who was, but is no longer, prevented under section 23A or disqualified under section 25(3) from obtaining a driver licence or learner permit because the person was disqualified from driving or obtaining a driver -- 34 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 30 Authorised by the Chief Parliamentary Counsel licence or learner permit in that other State or Territory as a result of a corresponding interstate drink-driving offence. (2) The Corporation must require the person to complete a first-stage behaviour change program specified in the notice under section 58E or contained in the information given to the person under subsection (4)— (a) before a driver licence or learner permit is issued to the person; or (b) within the period specified in the notice or contained in the information. Note Under section 31KB, a driver licence or learner permit granted by the Corporation to a person to whom that section applies must be made subject to an alcohol interlock condition. Before the alcohol interlock condition is removed, the person may be required to complete a second-stage behaviour change program—see section 58D. (3) Subsection (2) does not apply if, under the regulations, the person is not required to complete a first-stage behaviour change program. (4) If it is not practicable to give notice to the person in accordance with section 58E, the Corporation must ensure that the person is given the information referred to in section 58E(2) in writing when the person applies for a driver licence or learner permit. (5) For the purposes of this Act, any information given to a person under subsection (4) is taken to have been given by notice under section 58E. -- 35 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 31 Authorised by the Chief Parliamentary Counsel 58G Requirement to complete behaviour change program does not affect any penalty A requirement to complete a behaviour change program in relation to an offence is in addition to, and does not limit or otherwise affect, any penalty that may be imposed in respect of the offence. 58H Evidence of completion of behaviour change program invalid, false or issued in error (1) This section applies if— (a) the Corporation or a court has accepted written evidence of a person having completed a behaviour change program; and (b) after issuing a driver licence or learner permit to the person on the basis of that evidence having been accepted, the Corporation becomes aware that the evidence is invalid, false or issued in error. (2) The Corporation must— (a) suspend any driver licence or learner permit held by the person; or (b) if the driver licence or learner permit is already suspended—further suspend the driver licence or learner permit from the date of expiry of the existing suspension; or -- 36 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 32 Authorised by the Chief Parliamentary Counsel (c) if the person does not hold a driver licence or learner permit—disqualify the person from driving a motor vehicle on a road in Victoria and disqualify the person from obtaining a driver licence or learner permit. (3) A suspension, further suspension or disqualification under subsection (2) remains in effect until the Corporation is satisfied that the person has completed the behaviour change program specified in the notice under section 58E. Division 2—Approval of behaviour change program and providers of behaviour change program 58I Corporation may approve behaviour change program (1) The Corporation may approve, in writing, a first-stage behaviour change program to be provided by an approved provider to persons who are required under this Act to complete a first-stage behaviour change program. (2) The Corporation may approve, in writing, a second-stage behaviour change program to be provided by an approved provider to persons who are required under the regulations to complete a second-stage behaviour change program. (3) The Corporation may approve a first-stage behaviour change program to be provided to a class of persons required to complete a first-stage behaviour change program. -- 37 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 33 Authorised by the Chief Parliamentary Counsel (4) The Corporation may approve a second-stage behaviour change program to be provided to a class of persons required to complete a second-stage behaviour change program. Example The Corporation may approve a second-stage behaviour change program that is to be provided only to repeat offenders. 58J Corporation may approve provider of behaviour change program (1) The Corporation may approve, in writing, a person or body to be a provider of a behaviour change program for the purposes of this Act. (2) The Corporation may determine the process for approving providers and the requirements an applicant must meet to be considered for approval. (3) At any time, the Corporation may, by giving written notice to the person or body concerned, vary the approval of that person or body under this section. Example The Corporation may vary the behaviour change program that the person or body is approved to provide. (4) The Corporation must not take action under subsection (3) unless it has allowed the person or body at least 10 working days to make written representations about the proposed action. 58K Conditions etc. on approval of providers (1) An approval under section 58J may be given subject to any specified condition, limitation or restriction that the Corporation considers appropriate. -- 38 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 34 Authorised by the Chief Parliamentary Counsel (2) At any time, the Corporation may, by giving written notice to the person or body concerned— (a) vary or revoke a condition, limitation or restriction to which the approval is subject; or (b) make the approval subject to a new condition, limitation or restriction. (3) The Corporation must not take action under subsection (2) unless it has allowed the person or body at least 10 working days to make written representations about the proposed action. 58L Cancellation or suspension of approval of provider (1) The Corporation may, by giving written notice to an approved provider, cancel or suspend the provider's approval under section 58J if the Corporation is satisfied that the provider— (a) has failed to comply with any condition, limitation or restriction to which the approval is subject; or (b) has failed to provide a behaviour change program to the satisfaction of the Corporation. (2) The Corporation must not take action under subsection (1) unless it has allowed the approved provider at least 10 working days to make written representations about the proposed action. 58M Review by Tribunal (1) A person or body whose interests are affected by a decision of the Corporation under section 58L to cancel or suspend an -- 39 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 35 Authorised by the Chief Parliamentary Counsel approval may apply for review of the decision to VCAT. (2) An application for review must be made within 28 days after the later of— (a) the day on which the decision is made; or (b) if the person or body requests a statement of reasons for the decision under section 45 of the Victorian Civil and Administrative Tribunal Act 1998, the day on which— (i) the statement is given to the person or body; or (ii) the person or body is informed under section 46(5) of that Act that the statement will not be given. Division 3—Fees relating to behaviour change program 58N Payment of fee (1) A person participating in a behaviour change program must pay to the approved provider who is providing the program— (a) any commercial charge set by the approved provider for participating in the behaviour change program; and (b) in the case of a first-stage behaviour change program—the fee determined by the Corporation under section 58P(1). (2) An approved provider must refund the fee payable under subsection (1)(b) to the person if the approved provider— -- 40 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 36 Authorised by the Chief Parliamentary Counsel (a) fails to provide the first-stage behaviour change program at the time agreed with the person; and (b) either— (i) is unable to reach agreement with the person as to an alternative time at which to provide the program; or (ii) fails to provide the first-stage behaviour change program at an alternative time agreed with the person. 58O Approved provider to give information and fees to Corporation (1) An approved provider must give to the Corporation the information required by the Corporation relating to each behaviour change program provided by the approved provider. (2) The information required by the Corporation under subsection (1) may include the details of the participants in the behaviour change program. (3) The approved provider must give the information in the manner and within the time determined by the Corporation. (4) In the case of a first-stage behaviour change program, the information given to the Corporation under subsection (1) must be accompanied by any fees paid to the approved provider under section 58N(1)(b) by the participants in the program. -- 41 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 37 Authorised by the Chief Parliamentary Counsel 58P Corporation may determine fees (1) The Corporation may determine from time to time the fee to be imposed on persons for participating in a first-stage behaviour change program conducted by an approved provider. (2) A determination under subsection (1) must be made by notice published in the Government Gazette. (3) In determining the amount of the fee, the Corporation must ensure that the total fees collected do not exceed the costs of the implementation and administration of the behaviour change program scheme established under this Part. (4) The determination may provide that a concessional rate of the fee applies to a specified class of persons. Division 4—Participation in and completion of behaviour change program 58Q Referral to medical or other therapeutic services (1) An approved provider may, as part of a behaviour change program, refer a participant in the program to medical or other therapeutic services. (2) Any fee or other cost associated with the attendance by the person at the provider of medical or other therapeutic services to which the person has been referred under subsection (1)— (a) must be paid by the person; and -- 42 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 38 Authorised by the Chief Parliamentary Counsel (b) does not form part of the fee for the behaviour change program determined by the Corporation under section 58P(1). 58R Certificate of completion (1) If a person completes a behaviour change program, the approved provider of the program must prepare a certificate of completion, in the form approved by the Corporation, certifying that the person has completed the program. (2) The certificate of completion must state whether the person has been referred to a medical or other therapeutic service as part of the behaviour change program. (3) The approved provider must provide a copy of the certificate of completion to— (a) the person who completed the behaviour change program; and (b) any other person prescribed by the regulations. (4) If a copy of a certificate of completion is required to be provided to a court, the person who completed the behaviour change program must provide a copy of the certificate to the court unless the regulations provide otherwise.". 25 Definitions for Part 6AB In section 84BJ(1) of the Principal Act, the definition of approved provider is repealed. 26 Repeal of Schedule 1A Schedule 1A to the Principal Act is repealed. -- 43 of 159 -- Part 2.2—Drink and drug driving offences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 39 Authorised by the Chief Parliamentary Counsel Division 3—Increased penalties for drug driving offences 27 Provisions about cancellation and disqualification In section 50(1E) of the Principal Act— (a) in paragraph (a), for "3 months" substitute "6 months"; (b) in paragraph (b), for "6 months" substitute "12 months". 28 Suspension of licence or permit for excessive speed infringement or drug-driving infringement In section 89D(1AA)(b) of the Principal Act, for "3 months" substitute "6 months". Division 4—Drinking while driving infringements 29 Definitions (1) In section 3(1) of the Principal Act, the definition of drinking while driving infringement is repealed. (2) In section 3(1) of the Principal Act, paragraph (g) of the definition of traffic infringement is repealed. 30 Traffic infringements (1) In section 88(1) of the Principal Act omit ", or that is a drinking while driving infringement,". (2) In section 88(5) of the Principal Act omit "(other than a drinking while driving infringement)". (3) Section 88(5A) of the Principal Act is repealed. -- 44 of 159 -- Part 2.3—Impoundment, immobilisation and forfeiture of motor vehicles Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 40 Authorised by the Chief Parliamentary Counsel Part 2.3—Impoundment, immobilisation and forfeiture of motor vehicles 31 Definitions for Part 6A (1) In section 84C(1) of the Principal Act, the definitions of tier 1 relevant offence and tier 2 relevant offence are repealed. (2) In section 84C(1) of the Principal Act, for the definition of relevant offence substitute— "relevant offence means— (a) any of the following offences— (i) an offence against section 18(1), other than an offence to which section 18(2) applies; (ii) an offence against section 30(1); (iii) an offence against section 49(1)(b), (bc), (f), (g) or (j) in circumstances where the concentration of alcohol— (A) present in the blood of the person was 0∙10 grams or more per 100 millilitres of blood; or (B) present in the breath of the person was 0∙10 grams or more per 210 litres of exhaled air; (iv) an offence against section 50AAD(1); (v) an offence against section 64(1)— (A) in circumstances involving improper use of a motor vehicle; or -- 45 of 159 -- Part 2.3—Impoundment, immobilisation and forfeiture of motor vehicles Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 41 Authorised by the Chief Parliamentary Counsel (B) in circumstances where the motor vehicle is driven at 45 kilometres per hour or more over the applicable speed limit; or (C) in circumstances where the applicable speed limit is 110 kilometres per hour and the motor vehicle is driven at a speed of 145 kilometres per hour or more; (vi) an offence against section 64A(1); (vii) an offence against section 65(1) in circumstances involving improper use of a motor vehicle; (viii) an offence against section 65A(1); (ix) an offence against section 65B or rule 20 of the Road Rules in circumstances where— (A) the motor vehicle is driven at 45 kilometres per hour or more over the applicable speed limit; or (B) the applicable speed limit is 110 kilometres per hour and the motor vehicle is driven at a speed of 145 kilometres per hour or more; (x) an offence against section 65C(1); (xi) an offence against section 68(1) or (2); (xii) an offence against section 68B; -- 46 of 159 -- Part 2.3—Impoundment, immobilisation and forfeiture of motor vehicles Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 42 Authorised by the Chief Parliamentary Counsel (xiii) an offence against rule 265(4), 266(1), 268(4A) or 268(4B) of the Road Rules in circumstances where the number of passengers in the motor vehicle exceeds the number of seats available to them in the motor vehicle; (xiv) an offence against rule 291 of the Road Rules in circumstances involving the improper use of a motor vehicle; (xv) an offence against rule 297 of the Road Rules in circumstances involving the improper use of a motor vehicle; (xvi) an offence against section 319AA(1) of the Crimes Act 1958; (b) any of the following offences where, within the period of 6 years immediately preceding the commission of the offence, the driver of the motor vehicle has committed the same offence, any other of the following offences or an offence referred to in paragraph (a)— (i) an offence against section 49(1)(bb), (h) or (i); (ii) an offence against section 49(1)(b), (bc), (f), (g) or (j) in circumstances where section 52 does not apply to the person and the concentration of alcohol— -- 47 of 159 -- Part 2.3—Impoundment, immobilisation and forfeiture of motor vehicles Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 43 Authorised by the Chief Parliamentary Counsel (A) present in the blood of the person was less than 0∙10 grams per 100 millilitres of blood; or (B) present in the breath of the person was less than 0∙10 grams per 210 litres of exhaled air; (iii) an offence against section 49(1)(b), (bc), (f), (g) or (j) where the concentration of alcohol present in the blood or breath of the person was any concentration greater than zero and section 52 applied to the person at the time of the offence;". (3) Section 84C(3A) of the Principal Act is repealed. 32 Section 84E repealed Section 84E of the Principal Act is repealed. 33 Impoundment or immobilisation order For section 84S(1) of the Principal Act substitute— "(1) On the application of the Chief Commissioner of Police under section 84U(1), if a driver is found guilty of a relevant offence and within the 6 years immediately preceding the commission of that offence the driver has committed one or more other relevant offences, the relevant court must order, subject to section 84Z, that the motor vehicle used in the commission of the relevant offence before the court or a substituted motor vehicle— -- 48 of 159 -- Part 2.3—Impoundment, immobilisation and forfeiture of motor vehicles Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 44 Authorised by the Chief Parliamentary Counsel (a) be impounded or immobilised for— (i) a period of 45 days; or (ii) on the application of the Chief Commissioner of Police, any longer period not exceeding 3 months in total (including any period of impoundment or immobilisation during the designated period); or (b) be forfeited to the Crown by order under section 84T(1). Notes 1 Section 84Z allows a court to decline to make an impoundment or immobilisation order in certain circumstances. 2 An application under section 84ZG for a search and seizure warrant may be heard and determined immediately after an application under section 84U(1) if an impoundment or immobilisation order is made.". 34 Forfeiture order For section 84T(1) of the Principal Act substitute— "(1) On the application of the Chief Commissioner of Police under section 84U(1), if a driver is found guilty of a relevant offence and within the period of 6 years immediately preceding the commission of that offence the driver has committed 2 or more other relevant offences, the relevant court may order, subject to section 84Z, that the motor vehicle used in the commission of the relevant offence before the court or a substituted motor vehicle be forfeited to the Crown.". -- 49 of 159 -- Part 2.3—Impoundment, immobilisation and forfeiture of motor vehicles Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 45 Authorised by the Chief Parliamentary Counsel 35 Application for an impoundment or immobilisation order or a forfeiture order (1) In section 84U(1)(b) of the Principal Act omit "unless subsection (1A) applies,". (2) Section 84U(1A) of the Principal Act is repealed. 36 Notice of application In section 84W(1) of the Principal Act— (a) in paragraph (c), for "sought; and" substitute "sought."; (b) paragraph (d) is repealed. 37 Notice where 2 or more offences charged In section 84Y(5)(a) and (c) of the Principal Act omit "tier 2". 38 Direction not to transfer registration or register motor vehicle In section 84YA(3)(b)(i) and (iii) of the Principal Act omit "tier 2". 39 Application to register financing statement after giving notice of intention to sell etc. Section 84ZQB(2) of the Principal Act is repealed. -- 50 of 159 -- Part 2.4—Driver licences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 46 Authorised by the Chief Parliamentary Counsel Part 2.4—Driver licences 40 Offence if driver not licensed For section 18(1), (1A), (2) and (3) of the Principal Act substitute— "(1) A person must not drive a motor vehicle on a highway unless the person— (a) holds a driver licence or learner permit which authorises the person to drive that category of motor vehicle; or (b) holds a licence or permit issued in another State, a Territory or another country and is authorised by the regulations to drive that category of motor vehicle; or (c) is otherwise authorised by the regulations to drive that category of motor vehicle. (1A) Unless subsection (2) or (3) applies, a person who commits an offence under subsection (1) is liable to a penalty not exceeding 60 penalty units or to imprisonment for not more than 6 months. (2) If the court is satisfied— (a) the person has held an appropriate licence (whether issued in Victoria or in another State or a Territory) or a licence issued in another country at some time before the commission of an offence under subsection (1); and (b) the licence was not cancelled for an offence relating to the driving of a motor vehicle committed by the person in Victoria or in another State or a Territory— -- 51 of 159 -- Part 2.4—Driver licences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 47 Authorised by the Chief Parliamentary Counsel the person is liable to a penalty not exceeding 10 penalty units or to imprisonment for not more than one month. (3) If the court is satisfied— (a) that the person was disqualified under this Act or the Sentencing Act 1991 from obtaining a driver licence or learner permit; and (b) that the person has ceased to be disqualified from obtaining a driver licence or learner permit; and (c) that— (i) the Magistrates' Court would have had power to give an alcohol interlock condition direction had the person applied for a licence eligibility order or, having applied for such an order, had the Court not refused to make it; or (ii) the person is a person to whom section 31KA or 31KB applies and, had the person applied for and been granted a driver licence or learner permit, the Corporation would have had power to impose an alcohol interlock condition on the driver licence or learner permit— the person is liable to a penalty not exceeding 60 penalty units or to imprisonment for not more than 6 months.". -- 52 of 159 -- Part 2.4—Driver licences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 48 Authorised by the Chief Parliamentary Counsel 41 New section 18AA inserted After section 18 of the Principal Act insert— "18AA Driving in breach of licence condition (1) The holder of a driver licence or learner permit must not drive a motor vehicle on a highway in breach of any condition of the driver licence or learner permit. Penalty: 20 penalty units. (2) A person authorised to drive a motor vehicle on a highway because the person holds an appropriate licence or permit issued in another State, a Territory or another country must not drive a motor vehicle on a highway in breach of any condition of that licence or permit. Penalty: 20 penalty units. (3) For the purposes of subsections (1) and (2), a person does not breach a condition of a driver licence or learner permit, or of a licence or permit issued in another State, a Territory or another country, if the regulations provide that the condition does not apply to the person at the time the person is driving the motor vehicle on the highway. (4) For the purposes of subsection (2), a person who— (a) is authorised to drive a motor vehicle on a highway because the person holds a licence issued in another country; and -- 53 of 159 -- Part 2.4—Driver licences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 49 Authorised by the Chief Parliamentary Counsel (b) drives a motor vehicle that has a GVM of not more than 4·5 tonnes— is not in breach of a condition of that licence merely because the GVM of the motor vehicle exceeds any limit to which the licence is subject. (5) A person who holds a driver licence or learner permit that is subject to an alcohol interlock condition does not commit an offence under subsection (1) if the person rides a motor cycle that is not fitted with an alcohol interlock while undertaking the on-road component of a motor cycle learner permit assessment.". 42 New sections 18B and 18C inserted After section 18A of the Principal Act insert— "18B Corporation may retain and check validity of licence documents (1) For the purposes of this section, a licence document is any driver licence, learner permit or other document that purports to authorise the holder of the licence document to drive a motor vehicle on a highway whether the licence document was— (a) issued by the Corporation; or (b) issued in another State or a Territory or another country. (2) The Corporation may retain any licence document for the purpose of checking its validity. (3) If the Corporation retains the licence document of a person under subsection (2), the Corporation must— -- 54 of 159 -- Part 2.4—Driver licences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 50 Authorised by the Chief Parliamentary Counsel (a) give the person a copy of the licence document that has been stamped by the Corporation and specifies the period (the effective period) during which the copy of the licence document may be relied on as evidence that the person is authorised to drive a motor vehicle on a highway; and (b) subject to section 18C, return the original of the licence document to the person before the expiry of the effective period. (4) If, at any time during the effective period specified on the copy of a licence document provided to a person by the Corporation under subsection (3), the person is required under this Act to produce the person's driver licence document or learner permit document, the person meets that requirement by producing the copy of the licence document. 18C Corporation may confiscate and destroy licence document believed to be false, etc. If the Corporation reasonably believes that a licence document retained under section 18B is false, fraudulent or counterfeit or has been improperly obtained, the Corporation may— (a) confiscate the licence document; and (b) destroy the licence document.". 43 Cancellation, suspension or variation of licences and permits by Corporation In section 24(3) of the Principal Act, for "bodily infirmity, defect or incapacity" substitute "disability, medical condition or injury". -- 55 of 159 -- Part 2.4—Driver licences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 51 Authorised by the Chief Parliamentary Counsel 44 Power of Corporation to require tests to be undergone In section 27(1A) of the Principal Act, for "exempted under the regulations from the requirement under section 18(1)(a) to hold a driver licence or learner permit" substitute "authorised under the regulations to drive a motor vehicle on a highway". 45 Disqualified person must not apply for licence or permit (1) In section 28B(1) of the Principal Act, after "this Act," insert "the regulations,". (2) In the penalty at the foot of section 28B(1) of the Principal Act, for "5 penalty units" substitute "10 penalty units". 46 Offence to drive while disqualified etc. (1) For the penalty at the foot of section 30 of the Principal Act substitute— "Penalty: 240 penalty units or imprisonment for 2 years.". (2) After section 30(1) of the Principal Act insert— "(2) Subsection (1) does not apply to a person who is undergoing a driving assessment or driving under instruction in accordance with the regulations.". 47 Offence to employ unlicensed driver (1) For section 32(1) and (2) of the Principal Act substitute— "(1) A person must not employ or engage a person, whether under a contract of employment or as a voluntary worker, to drive a motor vehicle on a highway if the driver does not hold a licence or permit that -- 56 of 159 -- Part 2.4—Driver licences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 52 Authorised by the Chief Parliamentary Counsel authorises the driver to drive the motor vehicle. Penalty: In the case of a natural person, 20 penalty units; In the case of a body corporate, 100 penalty units. (2) A person who employs or engages a driver does not commit an offence against subsection (1) if— (a) the person presents or points to evidence that suggests a reasonable possibility that— (i) before employing or engaging the driver, the person made all enquiries that were reasonable in the circumstances; and (ii) after doing so, believed on reasonable grounds that the driver held a licence or permit that authorised the driver to drive the motor vehicle; and (b) the contrary is not proved (beyond reasonable doubt) by the prosecution. (2A) If a person— (a) employs or engages another person, whether under a contract of employment or as a voluntary worker, to drive a motor vehicle on a highway; and -- 57 of 159 -- Part 2.4—Driver licences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 53 Authorised by the Chief Parliamentary Counsel (b) becomes aware that the other person does not hold, or no longer holds, a licence or permit that authorises the other person to drive the motor vehicle— the person must not continue to employ or engage the other person to drive the motor vehicle. Penalty: In the case of a natural person, 20 penalty units; In the case of a body corporate, 100 penalty units.". (2) At the foot of section 32(3) of the Principal Act insert— "Penalty: 10 penalty units.". 48 New section 32A inserted After section 32 of the Principal Act insert— "32A Offence to allow, permit or cause unlicensed driver to drive motor vehicle A person must not allow, permit or cause another person to drive a motor vehicle on a highway knowing that the other person does not hold a licence or permit that authorises the other person to drive the motor vehicle. Penalty: 60 penalty units or imprisonment for 6 months.". 49 Interpretation In section 34 of the Principal Act, in paragraph (b) of the definition of unlicensed driver, for "exempts the person under the regulations from the requirements of section 18(1)(a)" substitute "under the regulations authorises the person to drive a motor vehicle on a highway". -- 58 of 159 -- Part 2.4—Driver licences Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 54 Authorised by the Chief Parliamentary Counsel 50 Cancellation of licence or permit for drink-driving infringements In section 89C(3A)(a) of the Principal Act, for "exempted under the regulations from the requirements of section 18(1)(a)" substitute "authorised under the regulations to drive a motor vehicle on a highway". 51 Suspension of licence or permit for excessive speed infringement or drug-driving infringement In section 89D(1A)(a) of the Principal Act, for "exempted under the regulations from the requirements of section 18(1)(a)" substitute "authorised under the regulations to drive a motor vehicle on a highway". 52 Schedule 5 amended In Schedule 5 to the Principal Act, in Column 2 of items 1 and 4, for "1 month" substitute "3 months". -- 59 of 159 -- Part 2.5—Demerit points scheme Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 55 Authorised by the Chief Parliamentary Counsel Part 2.5—Demerit points scheme 53 Power of court to cancel, suspend or vary licences and permits The note at the foot of section 28(7) of the Principal Act is repealed. 54 Demerit point option notice (1) After section 36(1) of the Principal Act insert— "(1A) For the purposes of subsection (1), if a person's driver licence or learner permit is cancelled or suspended by the Corporation under another provision of this Act or under the regulations or another Act or by a court or by operation of this Act, the person is taken not to be the holder of that driver licence or learner permit. Note If a person to whom subsection (1A) applies has incurred the relevant number of demerit points referred to in subsection (1), the person does not have the option of extending the demerit point period and the Corporation must suspend the person's driver licence or learner permit under this Division. See section 41A.". (2) For section 36(4)(b) and (c) of the Principal Act substitute— "(b) a person's driver licence or learner permit is suspended under this Division; or (c) a person is disqualified under Division 4 from driving and from obtaining a driver licence or learner permit—". 55 Extended demerit point period Section 38(2) and (3) of the Principal Act are repealed. -- 60 of 159 -- Part 2.5—Demerit points scheme Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 56 Authorised by the Chief Parliamentary Counsel 56 Person elects to extend demerit point period and incurs no additional demerit points For section 39(1) of the Principal Act substitute— "(1) This section applies if— (a) a person on whom a demerit point option notice is served notifies the Corporation in accordance with section 38(1) that the person elects to extend the demerit point period; and (b) the person incurs no additional demerit points in relation to any offence committed within the extended demerit point period; and (c) the driver licence or learner permit of the person has not been cancelled or suspended for a driving offence (whether the cancellation or suspension is imposed under this Act or otherwise) during the extended demerit point period.". 57 Person elects to extend demerit point period and incurs additional demerit points (1) In the heading to section 40 of the Principal Act, after "points" insert "or has driver licence or learner permit cancelled or suspended for a driving offence". (2) For section 40(1) of the Principal Act substitute— "(1) This section applies if— (a) a person on whom a demerit point option notice is served notifies the Corporation in accordance with section 38(1) that the person elects to extend the demerit point period; and -- 61 of 159 -- Part 2.5—Demerit points scheme Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 57 Authorised by the Chief Parliamentary Counsel (b) either— (i) the person incurs one or more additional demerit points in relation to an offence committed within the extended demerit point period; or (ii) the driver licence or learner permit of the person has been cancelled or suspended for a driving offence (whether the cancellation or suspension is imposed under this Act or otherwise) during the extended demerit point period.". 58 New section 41A inserted After section 41 of the Principal Act insert— "41A Persons whose driver licence or learner permit is suspended or cancelled (1) The Corporation must suspend under this Division, for the period calculated in accordance with subsection (2), a person's driver licence or learner permit that is cancelled or suspended by the Corporation under another provision of this Act or under the regulations or another Act or by a court or by operation of this Act if— (a) that driver licence or learner permit— (i) is a full driver licence; or (ii) is a learner permit or probationary driver licence and the person also holds, or has held, a full driver licence; and -- 62 of 159 -- Part 2.5—Demerit points scheme Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 58 Authorised by the Chief Parliamentary Counsel (b) the person incurs 12 or more demerit points within any 3 year period. (2) For the purposes of subsection (1), the period for which a person's driver licence or learner permit must be suspended is as follows— (a) 3 months; and (b) an additional one month for each 4 demerit points in excess of the 12 recorded against the person as at the date of issue of the demerit point option notice. (3) The Corporation must suspend under this Division, for the period calculated in accordance with subsection (4), a person's driver licence or learner permit that is cancelled or suspended by the Corporation under another provision of this Act or under the regulations or another Act or by a court or by operation of this Act if— (a) that driver licence or learner permit is a learner permit or probationary driver licence and the person does not hold, and has never held, a full driver licence; and (b) the person incurs— (i) 5 or more demerit points within any 12 month period; or (ii) 12 or more demerit points within any 3 year period. (4) For the purposes of subsection (3), the period for which a person's driver licence or learner permit must be suspended is as follows— -- 63 of 159 -- Part 2.5—Demerit points scheme Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 59 Authorised by the Chief Parliamentary Counsel (a) if the person incurred 12 or more demerit points within a 3 year period but not 5 or more within a 12 month period— (i) 3 months; and (ii) an additional one month for each 4 demerit points in excess of the 12 recorded against the person as at the date of issue of the demerit point option notice; or (b) if the person incurred 5 or more demerit points within a 12 month period— (i) 3 months; and (ii) an additional one month for each 4 demerit points in excess of the 5 recorded against the person as at the date of issue of the demerit point option notice. (5) If the Corporation suspends a person's driver licence or learner permit under this section, the Corporation must serve on the person a notice containing the prescribed particulars and specifying the date on which the suspension takes effect. (6) When calculating demerit points recorded against the person at any time after the end of the period of suspension, the Corporation must disregard all the demerit points recorded against the person as at the date of issue of the demerit point option notice.". 59 Suspension of driver licence or learner permit under this Division (1) The notes at the foot of section 42(1) and (2) of the Principal Act are repealed. -- 64 of 159 -- Part 2.5—Demerit points scheme Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 60 Authorised by the Chief Parliamentary Counsel (2) After section 42(2) of the Principal Act insert— "(2A) The suspension of a driver licence or learner permit under section 41A(1) or (3)— (a) takes effect on and from the date determined by the Corporation and specified in the notice served under section 41A(5); and (b) operates concurrently with the period for which the person's driver licence or learner permit is suspended by the Corporation under another provision of this Act or under the regulations or another Act or by a court or by operation of this Act, or the period for which the person is disqualified from obtaining a driver licence or learner permit (as the case may be).". (3) After section 42(4) of the Principal Act insert— "(5) The Corporation may determine a date as the date on which a suspension under this Division takes effect even if on or before that date the driver licence or learner permit is cancelled or suspended by the Corporation under another provision of this Act or under the regulations or another Act or by a court or by operation of this Act. Example A person who elects to extend the demerit point period has their driver licence suspended for 3 months for a driving offence that does not attract demerit points. The person had incurred 16 demerit points at the time of the demerit point option notice and, under section 40(2) faces an 8 month suspension under this Division. The Corporation may determine that the 8 month suspension under this Division takes effect on the same day as that on which the 3 month suspension takes effect, allowing the 2 suspensions to operate concurrently.". -- 65 of 159 -- Part 2.5—Demerit points scheme Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 61 Authorised by the Chief Parliamentary Counsel 60 New section 44 substituted For section 44 of the Principal Act substitute— "44 Suspension of driver licence or learner permit cancelled or suspended other than under this Division (1) If a driver licence or learner permit suspended under this Division is suspended by the Corporation under another provision of this Act or under the regulations or another Act or by a court or by operation of this Act, the suspension does not affect the period of suspension under this Division. Example 3 months into a 10 month suspension under this Division, a person has their driver licence suspended by a court for 6 months. At the conclusion of that period of 6 months, the person's driver licence remains suspended for a further one month period (i.e. until the 10 month period of suspension originally imposed under this Division has elapsed). (2) If a driver licence or learner permit suspended under this Division is cancelled by the Corporation under another provision of this Act or under the regulations or another Act or by a court or by operation of this Act, the person remains disqualified from obtaining a driver licence or learner permit until the period for which the person's driver licence or learner permit was suspended under this Division has elapsed. Example One month into a 6 month suspension under this Division, a person has their driver licence cancelled by a court and is disqualified from driving and obtaining a driver licence or learner permit for 3 months. At the conclusion of that period of 3 months, the person remains disqualified from obtaining a driver licence or learner permit for a -- 66 of 159 -- Part 2.5—Demerit points scheme Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 62 Authorised by the Chief Parliamentary Counsel further period of 2 months (i.e. until the 6 month period of suspension originally imposed under this Division has elapsed).". 61 Appeal to Magistrates' Court In section 46H(1) of the Principal Act, for "(3)(a) or 41" substitute "(3)(a), 41 or 41A(1) or (3)". -- 67 of 159 -- Part 2.6—Service of notices Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 63 Authorised by the Chief Parliamentary Counsel Part 2.6—Service of notices 62 Person fails to elect to extend demerit point period For section 41(3) of the Principal Act substitute— "(3) If the demerit point option notice is returned to the Corporation as undelivered to the person, the Corporation may take the action under subsection (2).". 63 Suspension of driver licence or learner permit under this Division For section 42(2) of the Principal Act substitute— "(2) The suspension of a driver licence or learner permit under section 41(2) takes effect on and from the date determined by the Corporation and specified in the demerit point option notice served under section 36(1).". 64 Sections 60, 60A and 84BE amended In sections 60(6), 60A(6) and 84BE(9) of the Principal Act, for "14 days" substitute "7 days". 65 Service of notices After section 93(3) of the Principal Act insert— "(4) A notice, other than a traffic infringement notice, served by post to a person at an authorised address (within the meaning of section 163A of the Infringements Act 2006) and returned undelivered to its sender is deemed to be served 7 days after the date specified in the notice as the date of the notice, despite it being returned to the sender as undelivered. -- 68 of 159 -- Part 2.6—Service of notices Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 64 Authorised by the Chief Parliamentary Counsel (5) Despite subsection (4), if— (a) a notice is returned undelivered; and (b) the person to whom the notice was sent demonstrates to the satisfaction of the Corporation that the person could not reasonably be expected to have received the notice— the Corporation must treat the notice as not having been served effectively on the person. (6) A person's residential address or address for the service of notices (including an electronic address) recorded against the person in any record maintained by the Corporation may be updated on the basis of notification by a third party and, for the purposes of subsection (4), is taken to be an authorised address of the person if the Corporation is satisfied that— (a) the third party is a credible source of that information; and (b) the information is likely to be up-to-date. Examples Notification given by a court, the Sheriff's Office, Victoria Police or any other enforcement agency.". -- 69 of 159 -- Part 2.7—Other amendments Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 65 Authorised by the Chief Parliamentary Counsel Part 2.7—Other amendments Division 1—Motor cycle driver licence conditions 66 Driver licences (1) In section 19(7B) of the Principal Act omit "(or if that licence is suspended, whether by a court or the Corporation, during that 3 year period, during an additional period equal to the period of the suspension)". (2) After section 19(7B) of the Principal Act insert— "(7C) In calculating the period of 3 years referred to in subsection (7B), any period for which the person's driver licence has been suspended or for which the person has been disqualified from driving during that 3 year period must be excluded.". 67 Zero blood or breath alcohol (1) In section 52(1E) of the Principal Act, for "from the issue of a driver licence" substitute "from the first issue of a driver licence". (2) For section 52(1G) of the Principal Act substitute— "(1G) In calculating— (a) the period of 3 years referred to in subsection (1E); or (b) the shorter period applying under subsection (1F)— any period for which the person's driver licence has been suspended or for which the person has been disqualified from driving during the period referred to in paragraph (a) or (b) must be excluded.". -- 70 of 159 -- Part 2.7—Other amendments Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 66 Authorised by the Chief Parliamentary Counsel 68 General duty of driver or person in charge of motor vehicle (1) In section 59(3) of the Principal Act— (a) for "from the issue" substitute "from the first issue"; (b) omit "(or if that licence is suspended, whether by a court or the Corporation, during that 3 year period, during an additional period equal to the period of the suspension)". (2) After section 59(3) of the Principal Act insert— "(3A) In calculating the period of 3 years referred to in subsection (3), any period for which the person's driver licence has been suspended, or the person has been disqualified from driving during that 3 year period must be excluded.". Division 2—Evidence of power to mass ratio 69 Definitions In section 3(1) of the Principal Act insert the following definitions— "power to mass ratio of a motor vehicle means the ratio between the power output of the motor vehicle's engine and the tare mass of the motor vehicle as at the time of its manufacture, where the power output is expressed in kilowatts and the tare mass is expressed in tonnes; tare mass, in relation to a motor vehicle, means the mass of the motor vehicle when ready for service, unoccupied and unladen, with all fluid reservoirs filled to nominal capacity except for fuel (which shall be 10 litres only) -- 71 of 159 -- Part 2.7—Other amendments Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 67 Authorised by the Chief Parliamentary Counsel and with all standard equipment and any options fitted;". 70 General evidentiary provisions After section 84(6)(b) of the Principal Act insert— "(ba) as to the power to mass ratio of a particular motor vehicle or class of motor vehicle is admissible in evidence and, in the absence of evidence to the contrary, is proof of the power to mass ratio of the motor vehicle or class of motor vehicle;". Division 3—Miscellaneous 71 Definitions (1) In section 3(1) of the Principal Act insert the following definitions— "combination means a group of vehicles consisting of a motor vehicle connected to one or more other vehicles; domestic partner of a person means— (a) a person who is in a registered relationship with the person; or (b) an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person— -- 72 of 159 -- Part 2.7—Other amendments Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 68 Authorised by the Chief Parliamentary Counsel (i) for fee or reward; or (ii) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation); registration number means a combination of one or more letters or numbers (or both) determined by the Corporation; spouse, in relation to a person, means a person to whom the person is married;". (2) After section 3(6) of the Principal Act insert— "(7) For the purposes of the definition of domestic partner in subsection (1)— (a) registered relationship has the same meaning as in the Relationships Act 2008; and (b) in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and (c) a person is not a domestic partner of another person only because they are co-tenants.". -- 73 of 159 -- Part 2.7—Other amendments Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 69 Authorised by the Chief Parliamentary Counsel 72 Power to inspect motor vehicles and trailers (1) After section 13(1) of the Principal Act insert— "(1A) A police officer may conduct a random safety inspection of any motor vehicle or trailer that is located in a public place whether the vehicle is attended or unattended. (1B) Except as provided in subsection (1C), the power to conduct an inspection of a motor vehicle under subsection (1A) does not include a power to inspect the interior of the motor vehicle. (1C) An authorised officer for the purposes of this section or a police officer may inspect under the bonnet, hood or other covering of the engine of the motor vehicle if— (a) the authorised officer or police officer believes on reasonable grounds that— (i) the driver of the motor vehicle is not complying with this Act or the regulations in driving a motor vehicle of that kind; or (ii) the motor vehicle does not comply with this Act or the regulations; or (b) the driver or the registered operator of the motor vehicle consents to the inspection.". (2) In section 13(4) of the Principal Act, for "inspecting officer" substitute "authorised officer". 73 Definitions for Division 3 of Part 2 (1) In section 16B(1) of the Principal Act, the definition of domestic partner is repealed. (2) Section 16B(4) of the Principal Act is repealed. -- 74 of 159 -- Part 2.7—Other amendments Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 70 Authorised by the Chief Parliamentary Counsel 74 Section 63B amended (1) For the heading to section 63B of the Principal Act substitute— "Use of vehicle immobilising devices". (2) In section 63B(1) of the Principal Act, for "device (a tyre deflation device) that causes the deflation of the tyres of a vehicle" substitute "vehicle immobilising device". (3) In section 63B(2) of the Principal Act, for "tyre deflation device" (where twice occurring) substitute "vehicle immobilising device". (4) After section 63B(2) of the Principal Act insert— "(3) In this section— vehicle immobilising device means a device capable of causing a vehicle to stop or preventing a vehicle from moving and includes a device designed for, or capable of, deflating tyres.". 75 Certain matters indicated by prescribed road safety cameras are evidence After section 81(1A) of the Principal Act insert— "(1B) For the purposes of subsection (1), where an image produced by the prescribed road safety camera contains images of more than one motor vehicle, a marker on a particular motor vehicle and a message stating the speed of that motor vehicle determined by the prescribed road safety camera is, without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof of the speed of that motor vehicle on that occasion.". -- 75 of 159 -- Part 2.7—Other amendments Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 71 Authorised by the Chief Parliamentary Counsel 76 Evidence relating to prescribed road safety cameras After section 83A(1) of the Principal Act insert— "(1A) For the purposes of section 41(1)(e) of the Criminal Procedure Act 2009, a certificate referred to in subsection (1) is the only document relevant to an alleged offence to which section 66 applies.". 77 Schedule 2 amended In Schedule 2 to the Principal Act— (a) in items 63, 64 and 65, for "12 people" substitute "9 people"; (b) after item 65 insert— "65A. The circumstances in which the driver of a motor vehicle must— (a) carry wheel chains or other safety devices suitable for hazardous areas in the motor vehicle; and (b) fit wheel chains or other safety devices suitable for hazardous areas to the motor vehicle.". -- 76 of 159 -- Part 2.8—Statute law revision Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 72 Authorised by the Chief Parliamentary Counsel Part 2.8—Statute law revision 78 Definitions In section 3(1) of the Principal Act insert the following definition— "Road Rules means the Road Safety Road Rules 2017;". 79 References to Head, Transport for Victoria (1) In sections 13(6)(b) and 16(2)(b) of the Principal Act, after "Secretary" insert "or the Head, Transport for Victoria". (2) In section 33(1) of the Principal Act, for "The Secretary" substitute "The Head, Transport for Victoria". (3) In sections 53(2) and 55(1) of the Principal Act, for "or the Secretary" substitute ", the Secretary or the Head, Transport for Victoria". (4) In section 55E of the Principal Act— (a) in subsection (1), in paragraph (c) of the definition of authorised officer, after "the Secretary;" insert "or"; (b) in subsection 22(d), after "Secretary" insert "or the Head, Transport for Victoria". (5) In section 74(2) of the Principal Act, for "or the Secretary" substitute ", the Secretary or the Head, Transport for Victoria". (6) In section 77(2)(c) of the Principal Act, after "Secretary" insert "or the Head, Transport for Victoria". 80 Obligations of road users In section 17A(4) of the Principal Act, for "subsection (3),," substitute "subsection (3),". -- 77 of 159 -- Part 2.8—Statute law revision Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 73 Authorised by the Chief Parliamentary Counsel 81 References to speed (1) In sections 61A(8)(c), 64(4)(b) and 65(3)(b) of the Principal Act, for "10km per hour" substitute "10 kilometres per hour". (2) In section 65B of the Principal Act, for "km per hour" substitute "kilometres per hour". 82 Definitions for Part 6AB In section 84BJ(1) of the Principal Act— (a) in the definition of improper use of a motor vehicle, for "wheels;" substitute "wheels."; (b) the definition of Road Rules is repealed. 83 Definitions for Part 6A In section 84C(1) of the Principal Act, the definition of Road Rules is repealed. 84 Schedule 2 amended In Schedule 2 to the Principal Act, in items 53 and 54, for "section 56" substitute "this Act". -- 78 of 159 -- Part 2.9—Transitional provisions Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 74 Authorised by the Chief Parliamentary Counsel Part 2.9—Transitional provisions 85 New section 103ZK inserted After section 103ZJ of the Principal Act insert— "103ZK Transitional provisions—Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 (1) On and after the commencement of section 5 of the Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017, a reference to section 23A of this Act is taken to include a reference to regulation 29 of the Road Safety (Drivers) Regulations 2009 as in force before that commencement. (2) Section 23B as inserted by section 6 of the Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 applies to any application for a driver licence or learner permit made to the Corporation that, under that section, may only be granted subject to an alcohol interlock condition, whether the offence giving rise to that restriction was committed before, on or after the day on which section 6 of that Act comes into operation. (3) Section 25A as inserted by section 7 of the Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 applies to a person currently disqualified under the law of another jurisdiction, within the meaning of section 25A, from driving or obtaining a driver licence or learner permit in that jurisdiction, whether the period of disqualification commenced before, on or after the day on which section 7 of that Act comes into operation. -- 79 of 159 -- Part 2.9—Transitional provisions Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 75 Authorised by the Chief Parliamentary Counsel (4) In determining for the purposes of section 31KB of this Act, as substituted by section 8 of the Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 (the amending Act), whether a Victorian drink-driving offence to which a corresponding interstate drink-driving offence corresponds would be a person's first, second or subsequent offence under sections 48(2), (5) and (6) and 50AA or section 50AAA(9) and Schedule 1B (as the case requires), regard may be had to— (a) previous offences committed by the person on or after the commencement of section 8 of the amending Act; and (b) previous offences committed by the person before the commencement of section 8 of the amending Act, if the corresponding interstate drink-driving offence is committed after that commencement. (5) Subject to subsection (6), sections 31A to 31H, 49A, 50AAAB and 50AAB and Schedule 1A as in force immediately before the day on which section 24 of the Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 comes into operation (the commencement day), continue to apply to any offence committed before the commencement day (other than an offence for which a disqualification was imposed under section 89A(1) of the Sentencing Act 1991). -- 80 of 159 -- Part 2.9—Transitional provisions Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 76 Authorised by the Chief Parliamentary Counsel (6) On and after the day on which section 24 of the Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 comes into operation (the commencement day), the amendments made to this Act by Division 2 of Part 2.2 of that Act apply in relation to— (a) any offence committed on or after the commencement day; and (b) any offence committed before the commencement day (other than an offence referred to in paragraph (c)) if the person who committed the offence— (i) does not hold a driver licence or learner permit immediately before the commencement day; and (ii) is not granted a driver licence or learner permit within 12 months after the commencement day; and (c) any offence for which a disqualification was imposed under section 89A(1) of the Sentencing Act 1991 committed before the commencement day. (7) Subject to subsection (8), Part 6A, as in force immediately before the day on which Part 2.3 of the Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 comes into operation (the commencement day), continues to apply to any relevant offence, within the meaning of 84C(1) as in force immediately before the commencement day, that is committed before the commencement day. -- 81 of 159 -- Part 2.9—Transitional provisions Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 77 Authorised by the Chief Parliamentary Counsel (8) On and after the day on which section 31 of the Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 comes into operation (the commencement day), Part 6A as amended by Part 2.3 of that Act applies to— (a) relevant offences committed on or after the commencement day; and (b) relevant offences committed before the commencement day if the most recent relevant offence is alleged to have been committed on or after the commencement day. (9) For the purposes of subsection (8), if a relevant offence is alleged to have been committed between 2 dates, one before and one after the commencement day (within the meaning of subsection (8)), the relevant offence is alleged to have been committed before the commencement day. (10) On and after the day on which Part 2.5 of the Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 comes into operation (the commencement day), Part 4 as amended by Part 2.5 of that Act applies to an extended demerit point period or the suspension of a driver licence or learner permit under Division 3 of Part 4 whether— (a) the extended demerit point period or the suspension commenced before, on or after the commencement day; or (b) the offences that gave rise to the extended demerit point period or the suspension were committed before, on or after the commencement day; or -- 82 of 159 -- Part 2.9—Transitional provisions Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 78 Authorised by the Chief Parliamentary Counsel (c) the conviction or finding of guilt in relation to an offence referred to in paragraph (b) occurred before, on or after the commencement day.". -- 83 of 159 -- Part 2.10—Amendment of Road Legislation Further Amendment Act 2016 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 79 Authorised by the Chief Parliamentary Counsel Part 2.10—Amendment of Road Legislation Further Amendment Act 2016 86 Cancellation and disqualification—corresponding interstate drink-driving offence In section 9 of the Road Legislation Further Amendment Act 2016— (a) in proposed new section 25(4) of the Road Safety Act 1986, for "subsections (5), (6) and (7)" substitute "subsections (5), (6), (7) and (9)"; (b) after proposed new section 25(8) of the Road Safety Act 1986 insert— "(9) Where the minimum period of disqualification that would apply to a Victorian drink-driving offence under section 89C is less than the period of disqualification that would be imposed under section 50 for the same offence, the lesser period of disqualification under section 89C is, for the purposes of subsection (4), taken to be the minimum period of disqualification that would apply had the person been convicted or found guilty of that offence.". -- 84 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 80 Authorised by the Chief Parliamentary Counsel Chapter 3—Amendment of rail legislation Part 3.1—Amendment of Rail Management Act 1996 87 Definitions In section 3 of the Rail Management Act 1996 insert the following definition— "Department means the Department of Economic Development, Jobs, Transport and Resources;". 88 New Part 2A of Rail Management Act 1996 substituted For Part 2A of the Rail Management Act 1996 substitute— "Part 2A—Rail access Division 1—Preliminary 38A Definitions In this Part— access provider means any of the following persons if they provide, or are capable of providing, a declared rail transport service— (a) an accredited rail transport operator within the meaning of the Rail Safety (Local Operations) Act 2006; (b) an accredited person within the meaning of the Rail Safety National Law (Victoria); -- 85 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 81 Authorised by the Chief Parliamentary Counsel (c) a rail transport operator who is exempted under Division 5A of Part 5 of the Rail Safety (Local Operations) Act 2006, or regulations made under that Act, from the requirement to be accredited under that Act; (d) a rail infrastructure manager within the meaning of the Rail Safety National Law (Victoria) who is registered under Division 5 of Part 3 of that Law; (e) the Southern Cross Station Authority; (f) the Crown; (g) a related body corporate of a person referred to in paragraphs (a) to (e); (h) any other person declared by Order in Council under section 38D to be an access provider; access regime dispute has the meaning given by section 38ZA; access seeker means any of the following persons who want to be provided a declared rail transport service by an access provider— (a) an accredited rail transport operator within the meaning of the Rail Safety (Local Operations) Act 2006; (b) an accredited person within the meaning of the Rail Safety National Law (Victoria); -- 86 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 82 Authorised by the Chief Parliamentary Counsel capacity, in relation to a declared rail network, means the capability of the declared rail network, when used, to provide declared rail transport services; declared rail network means the rail infrastructure used to provide declared rail transport services; declared rail transport service means a rail transport service declared by an Order under section 38E; independent panel means an independent panel constituted under section 38ZC; operate has the meaning given by section 38B; penalty provision means any of the following sections— (a) section 38ZJ(2); (b) section 38ZP(1); (c) section 38ZP(2); principle of passenger priority means the principle set out in section 38G; rail access agreement content order means an Order under section 38O; rail access guidelines means guidelines prepared under section 38H and includes any amendment to guidelines prepared under that section; rail transport operator means a rail transport operator within the meaning of the Rail Safety (Local Operations) Act 2006 or the Rail Safety National Law (Victoria); -- 87 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 83 Authorised by the Chief Parliamentary Counsel rail transport service has the meaning given by section 38C; specified maximum prices means prices specified under section 38J, 38K or 38M; Statement of Freight Network Capability means a statement prepared under section 38P and includes any amendment to a statement prepared under that section; user means any of the following persons who is provided a declared rail transport service by an access provider— (a) an accredited rail transport operator within the meaning of the Rail Safety (Local Operations) Act 2006; (b) an accredited person within the meaning of the Rail Safety National Law (Victoria). 38B Meaning of operate A person operates rail infrastructure or tram infrastructure, or a rail network, for the purposes of this Part if the person— (a) owns or leases rail infrastructure or tram infrastructure, or a rail network, or has a right conferred by an Act or a contract to manage rail infrastructure or tram infrastructure, or a rail network; and (b) either— (i) operates, or appoints an agent or contractor to operate, the signalling, rolling stock control -- 88 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 84 Authorised by the Chief Parliamentary Counsel and communications facilities of the railway or tramway, as the case requires; or (ii) carries out, or appoints an agent or contractor to carry out, on or around the railway or tramway (as the case requires), the construction, maintenance, repair or alteration of any of the rail infrastructure or tram infrastructure, or rail network. 38C Meaning of rail transport service (1) A rail transport service is a service provided, or that may be provided, by an access provider to any of the following entities by means of rail infrastructure or tram infrastructure owned or operated by that provider that enables the entity to provide freight services, passenger services or other transport services— (a) a user; (b) an access seeker; (c) a related body corporate of the access provider. (2) A rail transport service is also a service provided, or that may be provided, by an access provider to itself by means of rail infrastructure or tram infrastructure owned or operated by that provider that enables the provider to provide freight services, passenger services or other transport services. (3) Without limiting subsection (1) or (2), a rail transport service includes any of the following services— -- 89 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 85 Authorised by the Chief Parliamentary Counsel (a) the service of allowing a user to use rail infrastructure or tram infrastructure (as the case requires); (b) the service of assessing the capacity of a rail network owned or operated by the access provider; (c) the service of allocating the capacity of a rail network owned or operated by the access provider; (d) the service of allocating train paths; (e) the service of planning train services; (f) the service of scheduling train services; (g) the service of managing and controlling train services, including train traffic management; (h) the service of managing and controlling a rail network owned or operated by the access provider; (i) the service of maintaining a rail network owned or operated by the access provider; (j) the service of extending, enhancing or expanding a rail network owned or operated by the access provider; (k) any service that is ancillary to a service referred to in subsection (1) or (2), or this subsection. 38D Declaration of persons to be access providers The Governor in Council on the recommendation of the Minister, by Order published in the Government Gazette, may declare a person who provides, or is capable of providing, a rail transport service (other -- 90 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 86 Authorised by the Chief Parliamentary Counsel than a person referred to in paragraphs (a) to (f) of the definition of access provider) to be an access provider. 38E Declaration of rail transport services (1) The Governor in Council on the recommendation of the Minister, by Order published in the Government Gazette, may declare a rail transport service to be a declared rail transport service for the purposes of this Part until the date (if any) for the expiry of the declaration specified in the Order. (2) An Order under subsection (1) must specify whether a rail transport service is a declared rail transport service in respect of passenger services, freight services or other transport services. (3) An Order under subsection (1) may— (a) specify that a rail transport service is a declared rail transport service in respect of a person named in the Order; (b) declare a rail transport service as a declared rail transport service by reference to— (i) the person who owns or operates the rail infrastructure used to provide the rail transport service; or (ii) the location of the rail infrastructure used to provide the rail transport service; or (iii) the type of rail infrastructure used to provide the rail transport service. -- 91 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 87 Authorised by the Chief Parliamentary Counsel (4) The Minister may only make a recommendation under subsection (1) if the Minister is satisfied that it is necessary to do so in the interests of competition or economic efficiency. 38F Object of Part The object of this Part is to regulate rail access in Victoria in the interests of competition and economic efficiency. 38G Principle of passenger priority (1) The principle of passenger priority is the giving of priority to the provision of rail transport services to passenger service users over the provision of rail transport services to other users. Note Rail access guidelines may include guidelines about how the principle of passenger priority may be implemented. (2) In this section— other users means users of rail transport services who use those services to provide freight services and other transport services (other than passenger services); passenger service users means users of rail transport services who use those services to provide passenger services. -- 92 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 88 Authorised by the Chief Parliamentary Counsel Division 2—Ministerial instruments for the purposes of this Part Subdivision 1—Rail access guidelines 38H Preparation of rail access guidelines (1) The Minister may prepare guidelines about the terms and conditions of rail access arrangements. (2) Without limiting subsection (1), rail access guidelines may contain guidance material on any one or more of the following— (a) the implementation by an access provider of the principle of passenger priority; (b) the management and notification arrangements for temporary railway track or tramway track closures; (c) the management and communication of freight train path availability; (d) arrangements governing— (i) how long rail access arrangements must be in effect; and (ii) extensions to the time rail access arrangements are in effect; (e) processes for amending rail access arrangements; (f) arrangements and processes for resolving disputes between access providers and access seekers about access to the provision of declared rail transport services. (3) The Minister may amend rail access guidelines. -- 93 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 89 Authorised by the Chief Parliamentary Counsel 38I Public availability of rail access guidelines (1) The Minister must— (a) publish rail access guidelines in the Government Gazette within 30 days after the end of the period of time specified in a notice under section 38N(3)(a) for the draft of the guidelines; and (b) make rail access guidelines available for inspection free of charge at the Department's offices. (2) In addition, the Minister must cause rail access guidelines to be published on the Department's Internet site. Subdivision 2—Rail access maximum pricing 38J Initial specification of rail access maximum prices (1) The Minister, by notice published in the Government Gazette, may specify maximum prices for declared rail transport services provided by an access provider by means of a declared rail network for the first financial year after the commencement of this section (the initial financial year). (2) For the purpose of specifying maximum prices under subsection (1), the Minister must have regard to— (a) the costs of maintaining the declared rail network; and (b) the opportunity for an access provider to recover any capital investment in the declared rail network; and -- 94 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 90 Authorised by the Chief Parliamentary Counsel (c) the costs incurred by an access provider in providing the declared rail transport services; and (d) the railway track standards specified in the applicable Statement of Freight Network Capability; and (e) the Government's rail freight policies and programs. (3) A notice under subsection (1) must— (a) specify— (i) the declared rail transport services to which the specified maximum prices will apply; and (ii) the initial financial year during which the specified maximum prices will apply to the provision of declared rail transport services; and (b) be published in accordance with that subsection before 1 June preceding the initial financial year. 38K Annual changes in rail access maximum prices (1) The Minister, by notice published in the Government Gazette, may specify new maximum prices that will apply to the provision of declared rail transport services provided by an access provider by means of a declared rail network for a financial year after the first financial year in respect of which the Minister specified maximum prices under section 38J. -- 95 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 91 Authorised by the Chief Parliamentary Counsel (2) In specifying new maximum prices under subsection (1), the Minister must have regard to published industry price indices that the Minister considers suitable. (3) A notice under subsection (1) must— (a) specify— (i) the declared rail transport services to which the new specified maximum prices will apply; and (ii) the financial year during which the new specified maximum prices will apply to the provision of declared rail transport services; and (b) specify the industry price indices that the Minister had regard to for the purpose of specifying the new maximum prices; and (c) be published in accordance with that subsection before 1 June in the year preceding the financial year in which the declared rail transport services will be provided by the access provider (and in respect of which the new maximum prices have been specified). 38L Review of specified maximum prices following change in railway track standards (1) This section applies if the Public Transport Development Authority notifies the Minister under section 38R of an amendment to a Statement of Freight Network Capability that includes an amendment to railway track standards specified in the Statement. -- 96 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 92 Authorised by the Chief Parliamentary Counsel (2) The Minister must review any specified maximum prices for the provision of declared services that will be affected by the amendment of railway track standards. The review must be completed within 30 days after that amendment takes effect. (3) The Minister must act under section 38K if following the review the Minister is of the opinion that new maximum prices should be specified for the provision of declared rail transport services affected by the amendment of railway track standards. 38M Increase in maximum prices at request of access provider (1) This section applies if an access provider— (a) reopens or proposes to reopen a part of rail infrastructure owned or operated by the provider in order to provide declared rail transport services by means of that infrastructure; or (b) makes or proposes to make improvements to rail infrastructure by means of which the provider provides declared rail transport services. (2) The access provider may apply to the Minister for the specification of new maximum prices to apply to the provision of those declared rail transport services. (3) An application must— (a) describe the rail infrastructure by means of which the access provider will provide the declared rail transport services, and the declared rail transport services; and -- 97 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 93 Authorised by the Chief Parliamentary Counsel (b) include the access provider's reasons for the specification of new maximum prices for the provision of the declared rail transport services. (4) On receiving an application, the Minister, by notice published in the Government Gazette, may specify new maximum prices that will apply to the provision of the declared rail transport services set out in the application. (5) For the purpose of specifying new maximum prices under subsection (4), the Minister must have regard to— (a) the costs of maintaining the relevant rail infrastructure; and (b) the opportunity for an access provider to recover any capital investment in the relevant rail infrastructure; and (c) the costs incurred by an access provider in providing the declared rail transport services; and (d) the railway track standards specified in the applicable Statement of Freight Network Capability; and (e) the Government's rail freight policies and programs. (6) Maximum prices specified under subsection (4)— (a) supersede any maximum prices specified under section 38J or 38K; and (b) may be superseded by maximum prices specified under section 38J or 38K, or under subsection (4). -- 98 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 94 Authorised by the Chief Parliamentary Counsel Subdivision 3—Public consultation requirements 38N Public consultation for draft rail access guidelines and proposed rail access maximum prices (1) This section applies if the Minister proposes to— (a) prepare rail access guidelines; or (b) specify maximum prices under section 38J or new maximum prices under section 38K. (2) Before preparing rail access guidelines, specifying maximum prices under section 38J or new maximum prices under section 38K, the Minister must— (a) prepare a draft of the guidelines or a draft of a notice under section 38J or 38K (a consultation draft); and (b) invite submissions and comments from the public in accordance with this section on the consultation draft. (3) The Minister must— (a) cause notice of a consultation draft to be published— (i) in a newspaper circulating generally throughout the State; and (ii) on the Department's Internet site; and (b) cause copies of a consultation draft to be made available to the public on the Department's Internet site; and -- 99 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 95 Authorised by the Chief Parliamentary Counsel (c) make copies of a consultation draft available for inspection free of charge at the Department's offices. (4) A notice under subsection (3)(a) must— (a) include a summary of the content of the consultation draft; and (b) specify the date by which a submission or comment must be made to the Minister; and (c) specify how a submission or comment must be made; and (d) specify that copies of the consultation draft are available— (i) on the Department's Internet site; and (ii) at the Department's offices during business hours free of charge. (5) The period of time between publication of the notice and the date specified in the notice must not be less than 30 days. Division 3—Rail access agreement content order 38O Rail access agreement content order (1) The Governor in Council on the recommendation of the Minister, by Order published in the Government Gazette, may specify terms and conditions for the provision of a declared rail transport service that must be included in a rail access agreement. -- 100 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 96 Authorised by the Chief Parliamentary Counsel (2) A rail access agreement content order cannot specify a term or condition that sets the maximum price for the provision of a declared rail transport service. Note The Minister specifies maximum prices for the provision of declared rail transport services under a notice under section 38J. (3) A rail access agreement content order is a legislative instrument within the meaning of the Subordinate Legislation Act 1994. Division 4—Statement of Freight Network Capability 38P Statement of Freight Network Capability (1) The Public Transport Development Authority must prepare a statement for every declared rail network that— (a) describes the proposed level of access that may be provided by the access provider to access seekers; and (b) provides information on the number of train paths for the provision of freight services; and (c) specifies railway track standards for the network. (2) In preparing a Statement of Freight Network Capability, the Public Transport Development Authority must— (a) have regard to the Government's rail freight policies and programs; and (b) consult with the Minister. -- 101 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 97 Authorised by the Chief Parliamentary Counsel (3) The Public Transport Development Authority must— (a) give a copy of a Statement of Freight Network Capability to— (i) the Minister; and (ii) the Head, Transport for Victoria; and (b) make a copy of a Statement of Freight Network Capability available for inspection free of charge at its offices. (4) In addition— (a) the Public Transport Development Authority must publish a Statement of Freight Network Capability on the Authority's Internet site; and (b) the Head, Transport for Victoria must cause a Statement of Freight Network Capability given to them under subsection (3)(a) to be published on the Department's Internet site. 38Q Preparation of new Statement of Freight Network Capability if there is a material change The Public Transport Development Authority must prepare a new Statement of Freight Network Capability that supersedes the previous Statement of Freight Network Capability if there is a material change to— (a) the declared rail network to which it relates; or (b) the use of that network. -- 102 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 98 Authorised by the Chief Parliamentary Counsel 38R Minister and Head, Transport for Victoria to be notified of amendment to railway track standards The Public Transport Development Authority must notify, in writing, the Minister and the Head, Transport for Victoria of any proposed amendment to a Statement of Freight Network Capability that will include an amendment to railway track standards specified in the Statement. Division 5—Rail access arrangements 38S Preparation and publication of rail access arrangement that accords with this Division An access provider must prepare and publish in accordance with this Division a rail access arrangement that meets the requirements of this Division. 38T Scope of rail access arrangement A rail access arrangement meets the requirements of this Division if it covers every declared rail transport service that the access provider provides by means of a declared rail network. 38U Content of rail access arrangements A rail access arrangement meets the requirements of this Division if it— (a) includes the following in relation to every declared rail transport service to which the arrangement relates— (i) a description of the service; -- 103 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 99 Authorised by the Chief Parliamentary Counsel (ii) the terms and conditions for the provision of the service in compliance with an applicable rail access agreement content order; (iii) the price for the service (which must not exceed the maximum price specified for the service by the Minister under Subdivision 2 of Division 2); and (b) describes available capacity on the declared rail network; and (c) describes how the arrangement has regard to the rail access guidelines and, if relevant, the Statement of Freight Network Capability; and (d) includes a description of the information that the access provider will make available to an access seeker; and (e) sets out the procedure for the making of an application by an access seeker for the provision to them of a declared rail transport service; and (f) describes the procedure and method as to how the access provider will assess and determine an application for the provision by them of a declared rail transport service to an access seeker. 38V Amendment of rail access arrangements (1) An access provider must amend a rail access arrangement as soon as practicable after there is— (a) a change in any regulatory requirements that necessitates an amendment to the arrangement in -- 104 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 100 Authorised by the Chief Parliamentary Counsel order for the arrangement to comply with the requirements of this Division; or (b) a significant change in a matter referred to in the arrangement in order for the arrangement to reflect that change. (2) For the purposes of subsection (1)(b), a matter includes the declared rail network or the declared transport services the provider provides. (3) In this section— regulatory requirements means— (a) section 38U; or (b) rail access guidelines; or (c) a rail access agreement content order. 38W Publication of rail access arrangements An access provider must publish the first rail access arrangement it is required to prepare under this Division and every amended rail access arrangement that meets the requirements of this Division on the provider's Internet site. 38X When rail access arrangements take effect (1) The first rail access arrangement that meets the requirements of this Division takes effect 60 days after the day on which the initial maximum prices specified by the Minister under section 38J that apply to the declared rail transport services to which the arrangement relates take effect. -- 105 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 101 Authorised by the Chief Parliamentary Counsel (2) An amended rail access arrangement takes effect on the day on which it is published on the provider's Internet site. Division 6—Requests for access 38Y Requests for access (1) An access seeker who wants to be provided declared rail transport services must request access to those services in accordance with this section. (2) The access seeker must submit a request for access to the access provider who provides the declared rail transport services. (3) A request must be in writing and contain the following— (a) a description of the declared rail transport services that the access seeker wants to be provided; (b) a description of the services that the access seeker will provide through the use of the declared rail transport services; (c) details of the access seeker's— (i) management competency; and (ii) financial viability; and (iii) relevant policies of insurance. 38Z Assessment of requests for access (1) An access provider who receives a request for access under section 38Y must assess the request within 30 days after receiving it and inform the access seeker of whether the provider accepts or rejects the request. -- 106 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 102 Authorised by the Chief Parliamentary Counsel (2) In assessing a request for access, an access provider must have regard to the rail access guidelines. (3) An access provider may reject a request for access if the provider is of the opinion that the request does not meet the requirements set out in section 38Y(3). (4) An access provider who rejects a request for access must give the access seeker written reasons for that rejection at the same time the provider informs the access seeker of the provider's decision. Division 7—Disputes about rail access Subdivision 1—Preliminary 38ZA Meaning of access regime dispute (1) An access regime dispute is a dispute between an access provider and an access seeker where the access provider and access seeker are unable to agree as to the terms and conditions for the provision of a declared rail transport service to the access seeker. (2) In addition, an access regime dispute is taken to arise between an access provider and an access seeker if— (a) an access seeker is of the opinion that— (i) an access provider has not complied with section 38W; or (ii) an access provider's rail access arrangement does not meet the requirements of Division 5; or -- 107 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 103 Authorised by the Chief Parliamentary Counsel (b) an access provider rejects a request for access under section 38Z; or (c) the access provider's rail access arrangement does not comply with an applicable rail access agreement content order. Subdivision 2—Notification 38ZB Notification of access regime dispute (1) An access seeker or an access provider may notify the Head, Transport for Victoria of an access regime dispute. A notification must be in writing. (2) On receiving a notification under subsection (1), the Head, Transport for Victoria must notify, in writing, of the access regime dispute— (a) the access provider, if an access seeker notified the Head, Transport for Victoria of the access regime dispute under subsection (1); and (b) the access seeker if the access provider notified the Head, Transport for Victoria of the access regime dispute under subsection (1). (3) The person notifying the Head, Transport for Victoria of an access regime dispute under subsection (1) and any persons notified by the Head, Transport for Victoria under subsection (2) are the parties to the access regime dispute. -- 108 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 104 Authorised by the Chief Parliamentary Counsel Subdivision 3—Independent panel 38ZC Head, Transport for Victoria must constitute independent panel to hear and determine access regime dispute (1) Within 30 days after receiving a notification under section 38ZB of an access regime dispute, the Head, Transport for Victoria must constitute an independent panel to hear and determine the dispute. (2) An independent panel must consist of 3 members— (a) being a chairperson and 2 other persons appointed by the Head, Transport for Victoria; and (b) each of whom must have knowledge of, or experience in, one of the following fields— (i) engineering; (ii) economics; (iii) law. (3) In addition, at least one member must have knowledge of, or experience in, reviewing rail access arrangements. 38ZD Disclosure of interests of independent panel members (1) If a person is, or is to be, a member of an independent panel and the person has or acquires any interests, pecuniary or otherwise, that could conflict with the proper performance of the functions of that person in relation to the hearing and determination of an access regime dispute— -- 109 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 105 Authorised by the Chief Parliamentary Counsel (a) the person must disclose the interest to the Head, Transport for Victoria; and (b) the person must not take part, or continue to take part, in the hearing and determination of the access regime dispute if— (i) the Head, Transport for Victoria gives a direction under subsection (2)(a); or (ii) if the Head, Transport for Victoria has caused the interest of the person to be disclosed to the parties to the dispute, all the parties do not consent to the person being a member of the independent panel. (2) If the Head, Transport for Victoria receives a disclosure of an interest under subsection (1) or becomes aware that a person is, or is to be, a member of an independent panel in relation to a hearing and that the person has in relation to the hearing such an interest— (a) if the Head, Transport for Victoria considers that the person should not take part, or should not continue to take part, in the hearing—the Head, Transport for Victoria must give a direction to the person accordingly; or (b) in any other case—the Head, Transport for Victoria must cause the interest of the person to be disclosed to the parties to the dispute. -- 110 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 106 Authorised by the Chief Parliamentary Counsel 38ZE Member of independent panel ceases to be or becomes incapable of being a member (1) This section applies if a member of an independent panel— (a) ceases to be a member of the panel before the determination of an access regime dispute; or Example A person may cease to be a member if the person dies or is directed not to take part in the hearing of an access regime dispute under section 38ZD. (b) becomes incapable of participating in the hearing and determination of the access regime dispute. Example A person may become too ill to continue to be a member. (2) The Head, Transport for Victoria must— (a) in the case where the member ceases to be a member of the panel before the determination of the access regime dispute, appoint another person as a member of the panel; and (b) in the case where the member becomes incapable of participating in the hearing and determination of the access regime dispute, remove the member and appoint another person as a member of the panel. (3) An independent panel constituted in accordance with this section may have regard to any record of proceedings for the hearing and determination of the access regime dispute of the independent panel as previously constituted. -- 111 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 107 Authorised by the Chief Parliamentary Counsel 38ZF Function of independent panel (1) The function of an independent panel is to hear and determine an access regime dispute. (2) In hearing and determining an access regime dispute, an independent panel must have regard to the object of this Part and, as the case requires, any one or more of the following— (a) the rail access guidelines; (b) the Statement of Freight Network Capability; (c) a rail access agreement content order. Subdivision 4—Hearing of access regime disputes 38ZG Hearings for the purposes of access regime disputes (1) An independent panel must conduct a hearing for the purposes of determining an access regime dispute. (2) In any hearing for the purposes of determining an access regime dispute, an independent panel— (a) is not bound by technicalities, legal forms or rules of evidence but must accord procedural fairness; and (b) must act as speedily as a proper consideration of the access regime dispute allows, having regard to the need to carefully and quickly inquire into and investigate the access regime dispute and all matters affecting the merits, and fair settlement, of the access regime dispute; and -- 112 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 108 Authorised by the Chief Parliamentary Counsel (c) may inform itself of any matter relevant to the access regime dispute in any way it thinks appropriate. (3) An independent panel may decide the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to an access regime dispute, and may require that the cases be presented within those periods. (4) An independent panel may require evidence or argument to be presented in writing, and may decide the matters on which it will hear oral evidence or argument. (5) An independent panel may decide that a hearing is to be conducted by— (a) telephone; or (b) closed circuit television; or (c) any other means of communication. 38ZH Hearings to be in private (1) A hearing of an access regime dispute is to be conducted in private. (2) However, a hearing or part of a hearing may be conducted in public if the parties to the dispute agree. (3) The chairperson of an independent panel that is conducting a hearing in private may give written directions as to the persons who may be present. (4) In giving a direction under subsection (3), the chairperson of an independent panel must have regard to the wishes of the parties to the dispute and the need for commercial confidentiality. -- 113 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 109 Authorised by the Chief Parliamentary Counsel 38ZI Right to representation In a hearing before an independent panel under this Division, a party to an access regime dispute may— (a) appear in person; or (b) be represented by someone else if the panel agrees. 38ZJ Particular powers for the purposes of hearing and determining access regime disputes (1) An independent panel may do any of the following things for the purpose of determining an access regime dispute— (a) give a direction in the course of, or for the purposes of, a hearing; (b) sit at any place; (c) adjourn to any time and place; (d) refer any matter to an expert and accept the expert's report as evidence; (e) generally give all such directions, and do all such things, as are necessary or expedient for the speedy hearing and making of a determination. (2) A party to an access regime dispute must not do any act or thing in relation to the hearing of an access regime dispute that would be a contempt of court if the independent panel were a court of record. (3) The chairperson of an independent panel may give an oral or written direction to any party to an access regime dispute not to divulge or communicate to anyone else specified information that was given to the party in the course of an access regime -- 114 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 110 Authorised by the Chief Parliamentary Counsel dispute unless the party has the chairperson's permission. 38ZK Power to take evidence on oath or affirmation (1) An independent panel may take evidence on oath or affirmation and for that purpose the chairperson of the independent panel may administer an oath or affirmation. (2) The power conferred under this section may be exercised only for the purpose of determining an access regime dispute. 38ZL Decisions of independent panel Any question before an independent panel (including the determination of an access regime dispute) is to be decided by a majority of the members of the panel. 38ZM Costs to be paid by parties to access regime dispute (1) Subject to section 38ZN, each party to an access regime dispute is to bear their own costs in a hearing. (2) In addition, the parties to an access regime dispute must pay to the Head, Transport for Victoria the costs incurred by the State for the constitution of the independent panel to hear and determine the access regime dispute. Those costs may include— (a) the fees, allowances and expenses paid to each member of the independent panel; and (b) the costs incurred by the State to provide appropriate indemnities for each member of the independent panel in relation to the performance of their -- 115 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 111 Authorised by the Chief Parliamentary Counsel functions and exercise of their powers under this Division. (3) Subject to subsection (4), the Head, Transport for Victoria must— (a) determine the proportion of costs referred to in subsection (2) that a party to an access regime dispute is to pay to the Head, Transport for Victoria; and (b) notify, in writing, the party of the amount of costs represented by that proportion. (4) If an independent panel determines that a party to an access regime dispute pay a proportion of the costs referred to in subsection (2), the Head, Transport for Victoria must apportion the costs under subsection (3) in accordance with that determination. (5) The Head, Transport for Victoria may recover from a party to an access regime dispute, as a debt due to the State, in a court of competent jurisdiction any costs of which the Head, Transport for Victoria has given notice to the party under subsection (3). 38ZN Independent panel may award costs in certain cases (1) At any time, an independent panel may direct that a party to an access regime dispute pay all or a specified part of the costs of the other party to the dispute. (2) An independent panel may make a direction under subsection (1) only if satisfied that it is fair to do so, having regard to the following— -- 116 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 112 Authorised by the Chief Parliamentary Counsel (a) whether the party has conducted themselves in the hearing in a way that unnecessarily disadvantaged the other party by conduct such as— (i) failing to comply with a direction of the panel without reasonable excuse; or (ii) failing to comply with this Part; or (iii) asking for an adjournment as a result of subparagraph (i) or (ii); or (iv) causing an adjournment; or (v) attempting to deceive another party or the independent panel; or (vi) vexatiously conducting the hearing; (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the hearing; (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law; (d) the nature and complexity of the matters before the panel; (e) any other matter the panel considers relevant. (3) If an independent panel considers that the representative of a party to an access regime dispute, rather than the party, is responsible for conduct described in subsection (2)(a) or (b), the panel may order that the representative in their own capacity -- 117 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 113 Authorised by the Chief Parliamentary Counsel compensate another party for any costs incurred unnecessarily. (4) Before making an order under subsection (3), an independent panel must give the representative a reasonable opportunity to be heard. (5) If an independent panel makes a direction as to costs before the completion of the hearing, the panel may require that the direction be complied with before it continues with the hearing. 38ZO Determination of access regime dispute (1) On hearing an access regime dispute, an independent panel must determine the dispute within 60 days after the independent panel was constituted. (2) A determination under this section may include a requirement that a party to the access regime dispute do any one or more of the following— (a) take specified action; (b) cease or refrain from taking specified action; (c) require a party to pay a specified proportion of the costs incurred by the State for the constitution of the independent panel to hear and determine the dispute. (3) A determination under this section takes effect on the day it is made or on any later date specified in the determination. (4) A copy of a determination under this section, and a statement of reasons for the determination, must be given to the parties to the access regime dispute without delay. -- 118 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 114 Authorised by the Chief Parliamentary Counsel 38ZP Compliance with directions and determinations of independent panel (1) A party to an access regime dispute must comply with a direction under this Division of the independent panel constituted to hear and determine the dispute. (2) A party to an access regime dispute must comply with the determination under section 38ZO of the independent panel constituted to hear and determine the dispute. Division 8—Enforcement and other proceedings 38ZQ Proceedings for contraventions of penalty provisions (1) The Secretary or the Public Transport Development Authority may apply to the Supreme Court for an order under this Part in respect of a contravention by a person of a penalty provision or the doing by a person of any other thing mentioned in subsection (2). (2) If the Court is satisfied that a person— (a) has contravened a penalty provision; or (b) has attempted to contravene such a provision; or (c) has aided, abetted, counselled or procured another person to contravene such a provision; or (d) has induced, or attempted to induce, another person whether by threats or promises or otherwise, to contravene such a provision; or -- 119 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 115 Authorised by the Chief Parliamentary Counsel (e) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by another person of such a provision; or (f) has conspired with others to contravene such a provision— the Court may order the person to pay a pecuniary penalty to the Minister in respect of each act or omission by the person to which this section applies as the Court determines to be appropriate, being an amount not exceeding $1 000 000. (3) In determining the amount of the pecuniary penalty to be paid by the person, the Court may have regard to all relevant matters including— (a) the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission; and (b) the circumstances in which the act or omission took place; and (c) whether the person has previously been found by the Court in proceedings under this Division to have contravened a penalty provision. 38ZR Pecuniary penalties to be paid into Consolidated Fund Every pecuniary penalty received by the Minister must be paid into the Consolidated Fund. 38ZS Injunctions (1) If, on an application by the Secretary or the Public Transport Development Authority, the Supreme Court is satisfied that a person has -- 120 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 116 Authorised by the Chief Parliamentary Counsel engaged, or is proposing to engage, in conduct that constitutes or would constitute— (a) a contravention of a penalty provision; or (b) attempting to contravene a penalty provision— the Court may grant an injunction in such terms as the Court determines to be appropriate. (2) If an application for an injunction under subsection (1) has been made the Court may, if the Court determines it to be appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that a person has engaged, or is proposing to engage, in conduct of a kind mentioned in subsection (1). (3) If in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1). (4) The Court may rescind or vary an injunction granted under subsection (1) or (2). (5) The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised— (a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and (b) whether or not the person has previously engaged in conduct of that kind. -- 121 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 117 Authorised by the Chief Parliamentary Counsel (6) The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised— (a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and (b) whether or not the person has previously refused or failed to do that act or thing. (7) The Court must not, in any application to the Court for the grant of an injunction under this section, require the Secretary, the Public Transport Development Authority or any other person to give any undertaking as to damages as a condition of granting an interim injunction. 38ZT Declaratory relief (1) The Supreme Court, on an application by the Secretary or the Public Transport Development Authority may, by order, declare whether or not the person to which the application relates has contravened a penalty provision. (2) If the order declares the person to have contravened a penalty provision, the order may include one or more of the following— (a) a requirement that the person cease, within a specified period, the act, activity or practice constituting the contravention; (b) a requirement that the person take such action, or adopt such practice, as the Court requires for remedying the contravention or preventing a recurrence of the contravention. -- 122 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 118 Authorised by the Chief Parliamentary Counsel 38ZU Enforcement of determinations of access regime disputes (1) If the Supreme Court is satisfied, on the application of a party to an access regime dispute in respect of which an independent panel has made a determination, that another party to that access regime dispute engaged, is engaging, or is proposing to engage in conduct that constitutes a contravention of the determination, the Court may make all or any of the following orders— (a) an order granting an injunction on such terms as the Court thinks appropriate— (i) restraining the other party from engaging in the conduct; or (ii) if the conduct involves refusing or failing to do something— requiring the other party to do that thing; (b) an order directing the other party to compensate the applicant for loss or damage suffered as a result of the contravention; (c) any other order that the Court thinks appropriate. (2) If the Supreme Court has power under subsection (1) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who was involved in the contravention concerned. -- 123 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 119 Authorised by the Chief Parliamentary Counsel (3) A reference in this section to a person involved in the contravention is a reference to a person who has— (a) aided, abetted, counselled or procured the contravention; or (b) induced the contravention, whether through threats or promises or otherwise; or (c) been in any way (directly or indirectly) knowingly concerned in or a party to the contravention; or (d) conspired with others to effect the contravention. 38ZV Appeal to Supreme Court on a question of law from a decision of an independent panel A party to an access regime dispute may appeal to the Supreme Court on a question of law from a decision of an independent panel. Division 9—Reporting 38ZW Access providers to report on freight network activity and performance (1) An access provider must give to the Head, Transport for Victoria and the Public Transport Development Authority, one month after each quarter of a financial year, a report (a network activity and performance report) that reports on the performance indicators in respect of the previous quarter. (2) An access provider who does not comply with subsection (1) must provide written reasons to the Minister, the Head, Transport for Victoria and the Public Transport -- 124 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 120 Authorised by the Chief Parliamentary Counsel Development Authority for not complying with that subsection. (3) The Public Transport Development Authority, after consultation with the Head, Transport for Victoria, must determine performance indicators which must be reported on in a network activity and performance report. (4) The performance indicators that are determined under subsection (3) may include— (a) the number of freight services provided using a specified railway track or specified part of a railway track that is part of a declared rail network; and (b) the volume and type of freight carried by rolling stock on a specified railway track or specified part of a railway track that is part of a declared rail network; and (c) the average speed limit for rolling stock carrying freight travelling on a specified railway track or specified part of a railway track that is part of a declared rail network; and (d) any other matter agreed to between the Public Transport Development Authority and the access provider. (5) The Public Transport Development Authority must— (a) publish the performance indicators it determines under subsection (3) on its Internet site; and -- 125 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 121 Authorised by the Chief Parliamentary Counsel (b) give those indicators, in writing, to the access provider to whom they will apply. Division 10—Collection and use of information 38ZX Definitions In this Division— information requirement means any requirement under section 38ZZ or 38ZZA; regulatory entity means— (a) the Minister; or (b) the Public Transport Development Authority. 38ZY Regulatory entity must have regard to certain matters A regulatory entity must have regard to the following matters when exercising the powers conferred on the entity under this Division— (a) the relevance of the information or document to the function being performed by the regulatory entity under this Part; (b) the estimated compliance costs for a person to comply with an information requirement. 38ZZ General power to obtain information and documents (1) If a regulatory entity considers that it is necessary to do so for the purposes of performing its functions or exercising its powers under this Part, the entity may -- 126 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 122 Authorised by the Chief Parliamentary Counsel require a person that the entity has reason to believe has any relevant information or document to provide that information or document to the entity. (2) For the purposes of subsection (1), a regulatory entity may require the person to appear before the entity to provide the information or document. (3) A requirement must be made in a written notice specifying— (a) the information or document required; and (b) the period of time within which the requirement must be complied with; and (c) the form in which the information or a copy of the document is to be given to the regulatory entity; and (d) whether or not the person is required to appear before the regulatory entity; and (e) that the requirement is made under this section. (4) The notice must include a copy of this Division. 38ZZA Provision of information relating to declared rail transport services provided by access provider (1) A regulatory entity, by written notice given to an access provider, may require the access provider to give to the entity information relating to the provision of declared rail transport services by the access provider. -- 127 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 123 Authorised by the Chief Parliamentary Counsel (2) A notice under subsection (1) may specify the manner and form in which the information must be given. (3) If information the subject of a notice under subsection (1) is held by a third party, a regulatory entity may require the access provider to enter into an arrangement with the third party under which the third party is to give the information to the regulatory entity. 38ZZB Compliance with requirement to provide information or document (1) A person who without lawful excuse fails to comply with any information requirement given to the person is guilty of an offence. Penalty: 120 penalty units. (2) It is a lawful excuse for the purposes of subsection (1) that compliance may tend to incriminate the person or make the person liable to a penalty for any other offence. 38ZZC Offence to give false or misleading information A person must not, in purported compliance with any information requirement given to the person, knowingly give a regulatory entity information that is false or misleading. Penalty: 120 penalty units or imprisonment for 6 months. 38ZZD Offence to threaten, intimidate or coerce person or take, threaten to take or incite A person must not— (a) threaten, intimidate or coerce another person; or -- 128 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 124 Authorised by the Chief Parliamentary Counsel (b) take, threaten to take, incite or be involved in any action that causes another person to suffer any loss, injury or disadvantage— because that other person complied, or intends to comply, with an information requirement. Penalty: 120 penalty units. 38ZZE No liability for giving information or document in compliance with requirement A person is not liable in any way for any loss, damage or injury suffered by another person because of the giving in good faith of any information or a document to a regulatory entity under this Division. 38ZZF Restriction on disclosure of confidential information (1) This section applies if— (a) information or a document is given to a regulatory entity under an information requirement; and (b) at the time the information or document is given, the person giving it states that it is of a confidential or commercially sensitive nature. (2) Before a regulatory entity makes a decision under subsection (3), the entity must— (a) give the person giving the information or document an opportunity to make a submission to the entity specifying— (i) why the information or document is of a confidential or commercially sensitive nature; and -- 129 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 125 Authorised by the Chief Parliamentary Counsel (ii) the detriment that would be caused by the disclosure of the information or document; and (b) consider any submission made by that person. (3) A regulatory entity must not disclose the information or the contents of the document to any person unless— (a) the regulatory entity is of the opinion— (i) that the disclosure of the information or document would not cause detriment to the person giving it; or (ii) that although the disclosure of the information or document would cause detriment to the person giving it, the public benefit in disclosing it outweighs that detriment; and (b) the regulatory entity is of the opinion, in relation to any other person who is aware of the information or the contents of the document and who might be detrimentally affected by the disclosure— (i) that the disclosure of the information or document would not cause detriment to that person; or (ii) that although the disclosure of the information or document would cause detriment to that person, the public benefit in disclosing it outweighs that detriment; and -- 130 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 126 Authorised by the Chief Parliamentary Counsel (c) the regulatory entity gives the person who gave the information or document a written notice— (i) stating that the entity wishes to disclose the information or contents of the document, specifying the nature of the intended disclosure and setting out detailed reasons why the entity wishes to make the disclosure; and (ii) stating that the entity is of the opinion required by paragraph (a) and setting out detailed reasons why it is of that opinion; and (iii) setting out a copy of this section; and (d) if the regulatory entity is aware that the person who gave the information or document in turn received the information or document from another person and is aware of that other person's identity and address, the entity gives that other person a written notice— (i) containing the details required by paragraph (c); and (ii) stating that the entity is of the opinion required by paragraph (b) in relation to the other person and setting out detailed reasons why it is of that opinion. Penalty: 120 penalty units. -- 131 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 127 Authorised by the Chief Parliamentary Counsel (4) Subsection (3) does not prevent— (a) the Minister from disclosing information or the contents of a document to— (i) a person employed in the Department under Part 3 of the Public Administration Act 2004; or (ii) a person engaged by the Minister or the Secretary to assist the Minister to perform the Minister's functions or exercise the Minister's powers under this Part; or (b) the Public Transport Development Authority from disclosing information or the contents of a document to— (i) an employee of the Authority; or (ii) a person who provides services to the Authority under an arrangement under section 79BK of the Transport Integration Act 2010; or (iii) a consultant, contractor or agent engaged by the Authority for the purpose of assisting the Authority to perform its functions or exercise its powers under this Part; or (iv) the Head, Transport for Victoria. (5) For the purposes of this section, the disclosure of anything that is already in the public domain at the time a regulatory entity wishes to disclose it can not cause detriment -- 132 of 159 -- Part 3.1—Amendment of Rail Management Act 1996 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 128 Authorised by the Chief Parliamentary Counsel to any person referred to in subsection (3)(a) or (b). 38ZZG Regulatory entity must not disclose exempt freedom of information documents (1) A regulatory entity must not disclose to any person any document that it has obtained from any agency (as defined in the Freedom of Information Act 1982) or a Minister that is an exempt document under the Freedom of Information Act 1982 in the hands of the agency or Minister. (2) Subsection (1) does not prevent a regulatory entity from doing anything specified in section 38ZZF(4).". 89 New section 118B inserted After section 118A of the Rail Management Act 1996 insert— "118B Binding access arrangements continue in effect until rail access arrangements take effect A binding access arrangement that is binding on an access provider and is in effect immediately before the commencement of section 89 of the Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 continues in effect on and after that commencement until a rail access arrangement published by that access provider in accordance with section 38W takes effect.". -- 133 of 159 -- Part 3.2—Amendment of Rail Safety (Local Operations) Act 2006 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 129 Authorised by the Chief Parliamentary Counsel Part 3.2—Amendment of Rail Safety (Local Operations) Act 2006 90 Definitions and interpretation (1) In section 3(1) of the Rail Safety (Local Operations) Act 2006, in the definition of Department, for "Transport" substitute "Economic Development, Jobs, Transport and Resources". (2) In section 3(1) of the Rail Safety (Local Operations) Act 2006 insert the following definition— "National Rail Safety Regulator means the Regulator within the meaning of the Rail Safety National Law (Victoria);". (3) In section 3(1) of the Rail Safety (Local Operations) Act 2006, the definition of public transport safety matter is repealed. (4) In section 3(1) of the Rail Safety (Local Operations) Act 2006, in paragraph (e) of the definition of railway premises, for "rail operations" substitute "railway operations". 91 Safety interface agreements In section 34I(b) of the Rail Safety (Local Operations) Act 2006, for "rail operations" substitute "railway operations". 92 Secretary to the Department of Transport is exempt (1) In the heading to section 35B of the Rail Safety (Local Operations) Act 2006 omit "of Transport". (2) In section 35B of the Rail Safety (Local Operations) Act 2006, for "Transport" substitute "Economic Development, Jobs, Transport and Resources". -- 134 of 159 -- Part 3.2—Amendment of Rail Safety (Local Operations) Act 2006 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 130 Authorised by the Chief Parliamentary Counsel 93 Surrender of accreditation In section 56(4)(b) and (5)(b) of the Rail Safety (Local Operations) Act 2006, for "rail operator" substitute "accredited rail transport operator". 94 Definitions—section 70 In section 70 of the Rail Safety (Local Operations) Act 2006 insert the following definition— "properly qualified analyst has the same meaning as in section 57B of the Road Safety Act 1986.". 95 Additional offences involving alcohol and drugs (1) After section 77(1)(d) of the Rail Safety (Local Operations) Act 2006 insert— "(da) refuses to provide a sample of oral fluid in accordance with section 86CB when required under that section to do so or refuses to comply with any other requirement made under that section; or". (2) In section 77(1)(e) of the Rail Safety (Local Operations) Act 2006, after "86D(2)" insert "or (3)". 96 Additional circumstance when rail safety workers may be convicted or found guilty (1) For section 78(b)(ii) of the Rail Safety (Local Operations) Act 2006 substitute— "(ii) if the worker was required under section 86CB(3) to provide a sample of oral fluid for analysis by a properly qualified analyst, the transport safety officer or police officer requiring a sample of oral fluid had not nominated a registered medical practitioner or approved health professional -- 135 of 159 -- Part 3.2—Amendment of Rail Safety (Local Operations) Act 2006 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 131 Authorised by the Chief Parliamentary Counsel to whom the sample was to be furnished for analysis.". (2) Section 78(b)(iii) of the Rail Safety (Local Operations) Act 2006 is repealed. 97 Additional matters for breath analyses Section 85(11) of the Rail Safety (Local Operations) Act 2006 is repealed. 98 Transport safety officer or police officer may require drug screening test, oral fluid analysis and blood test In section 86A(4) of the Rail Safety (Local Operations) Act 2006, for "86D" substitute "86CA, 86CB, 86CF or 86D". 99 New sections 86CA to 86CG inserted After section 86C of the Rail Safety (Local Operations) Act 2006 insert— "86CA Drug screening tests (1) This section applies if a transport safety officer authorised for the purposes of this section or a police officer requires a rail safety worker to submit to a drug screening test under section 86A(1). (2) The transport safety officer or police officer may, for the purposes of carrying out a drug screening test, require the rail safety worker to place a prescribed device, or the collection unit of a prescribed device, into the worker's mouth and carry out the physical actions that are necessary to ensure that, in the opinion of the officer, a sufficient sample of oral fluid has been captured by the device or unit. -- 136 of 159 -- Part 3.2—Amendment of Rail Safety (Local Operations) Act 2006 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 132 Authorised by the Chief Parliamentary Counsel (3) A device prescribed for the purposes of carrying out drug screening tests may be comprised of a collection unit and a testing unit and one or more other parts. (4) The transport safety officer or police officer who carries out a drug screening test may give any reasonable direction as to the physical actions that are necessary for the test to be carried out. (5) The rail safety worker must remain at the place at which the drug screening test is being carried out until the sample of oral fluid collected in accordance with subsection (2) has been tested by a prescribed device. (6) The rail safety worker is not obliged to undergo a drug screening test under this section if more than 3 hours have passed since the worker— (a) last carried out or attempted to carry out rail safety work; or (b) was involved in a prescribed notifiable occurrence. (7) The Safety Director or the National Rail Safety Regulator may only authorise a transport safety officer for the purposes of this section if satisfied that the transport safety officer has the appropriate training to carry out a drug screening test. 86CB Oral fluid analysis (1) This section applies if a rail safety worker is— (a) required— (i) to submit to an assessment of drug impairment under section 86B; or -- 137 of 159 -- Part 3.2—Amendment of Rail Safety (Local Operations) Act 2006 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 133 Authorised by the Chief Parliamentary Counsel (ii) to submit to a drug screening test under section 86A; and (b) in the opinion of the transport safety officer or police officer who carries out that assessment or test— (i) the assessment or test indicates that the worker's oral fluid contains a prescribed drug; or (ii) the worker has refused or failed to carry out the assessment or test in the manner described in section 86C or 86CA(2) (as the case requires). (2) A transport safety officer or police officer authorised for the purposes of this section may require the rail safety worker to provide a sample of oral fluid for testing by a prescribed device. (3) If a transport safety officer or police officer authorised for the purposes of this section considers it necessary, the officer may require the rail safety worker to provide a sample of oral fluid for analysis by a properly qualified analyst. (4) If the transport safety officer or police officer considers it necessary for the purposes of subsection (2) or (3), the officer may require the rail safety worker— (a) to accompany any transport safety officer or police officer to a place or vehicle where a sample is to be provided; and -- 138 of 159 -- Part 3.2—Amendment of Rail Safety (Local Operations) Act 2006 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 134 Authorised by the Chief Parliamentary Counsel (b) to remain there until the earlier of the following— (i) the worker has provided the sample and any further sample required to be provided under subsection (5) and the sample has been tested by a prescribed device; (ii) 3 hours after the worker last carried out or attempted to carry out the rail safety work or was involved in a prescribed notifiable occurrence. (5) The transport safety officer or police officer who required a sample of oral fluid to be provided under subsection (2) may require the rail safety worker who provided it to provide one or more further samples if it appears to the officer that the prescribed device is incapable of testing for the presence of a prescribed drug in the sample or samples because— (a) the amount of sample provided was insufficient; or (b) of a power failure or malfunctioning of the device. (6) If the transport safety officer or police officer requires a sample of oral fluid to be provided under subsection (3), the officer may require the rail safety worker who provided it to provide one or more further samples if it appears to the officer that the amount of sample provided was insufficient for the purposes of testing for the presence of a prescribed drug. -- 139 of 159 -- Part 3.2—Amendment of Rail Safety (Local Operations) Act 2006 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 135 Authorised by the Chief Parliamentary Counsel (7) Only the following persons may carry out the procedure for the provision of a sample of oral fluid under this section— (a) a transport safety officer authorised in writing by the Safety Director or the National Rail Safety Regulator for the purposes of this section; (b) a police officer authorised in writing by the Chief Commissioner of Police for the purposes of this section. (8) The Safety Director, the National Rail Safety Regulator or the Chief Commissioner of Police may, as the case requires, authorise a transport safety officer or police officer for the purposes of this section if satisfied that the officer has the appropriate training to carry out the prescribed procedure for the provision of a sample. (9) A device prescribed for the purposes of the collection of a sample of oral fluid may be comprised of a collection unit and a testing unit and one or more other parts. 86CC Provision of oral fluid samples for oral fluid analysis (1) A rail safety worker required to provide a sample of oral fluid under section 86CB must do so by placing the prescribed device, or the collection unit of the device, into the worker's mouth and carrying out the physical actions that are necessary to ensure that, in the opinion of the transport safety officer or police officer to whom the sample is being provided, a sufficient sample of oral fluid has been captured by the device or unit. -- 140 of 159 -- Part 3.2—Amendment of Rail Safety (Local Operations) Act 2006 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 136 Authorised by the Chief Parliamentary Counsel (2) A transport safety officer or police officer who requires a rail safety worker to provide a sample of oral fluid under section 86CB may give any reasonable direction as to the physical actions that are necessary for the sample to be provided. (3) A rail safety worker is not obliged to provide a sample of oral fluid under section 86CB if more than 3 hours have passed since the worker— (a) last carried out or attempted to carry out rail safety work; or (b) was involved in a prescribed notifiable occurrence. (4) The provision of a sample of oral fluid under this section must be carried out in accordance with the prescribed procedure. (5) A rail safety worker must not be convicted or found guilty of refusing to provide under section 86CB a sample of oral fluid if the worker satisfies the court that there was some reason of a substantial character for the refusal, other than a desire to avoid providing information which might be used against the worker. (6) A device prescribed for the purposes of the collection of a sample of oral fluid may be comprised of a collection unit and a testing unit and one or more other parts. 86CD Part of oral fluid sample to be delivered to rail safety worker if drugs detected If a test of a sample of oral fluid provided under section 86CB by a rail safety worker indicates, in the opinion of the transport safety officer or police officer who carried out the procedure in the course of which the -- 141 of 159 -- Part 3.2—Amendment of Rail Safety (Local Operations) Act 2006 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 137 Authorised by the Chief Parliamentary Counsel sample was provided, that the oral fluid contains a prescribed drug, the officer may— (a) if the officer who carried out the procedure was not the transport safety officer or police officer who required the sample to be provided, deliver a part of the sample to the officer who required the sample to be provided; and (b) deliver another part of the sample to the worker. 86CE Rail safety worker required to provide oral fluid sample may request sample of blood to be taken (1) This section applies if a rail safety worker is required under section 86CB to provide a sample of oral fluid. (2) The rail safety worker may request the transport safety officer or police officer who required the sample to arrange for the taking in the presence of a transport safety officer or police officer of a sample of the worker's blood for analysis at the worker's own expense by a registered medical practitioner or an approved health professional nominated by the officer. (3) Nothing in this section relieves a rail safety worker from any penalty under section 77(1)(da) for refusing to provide a sample of oral fluid. 86CF Officer may require blood sample if oral fluid sample insufficient (1) This section applies if a transport safety officer or police officer requires a rail safety worker to provide a sample of oral fluid under section 86CB for analysis and in the opinion of the officer— -- 142 of 159 -- Part 3.2—Amendment of Rail Safety (Local Operations) Act 2006 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 138 Authorised by the Chief Parliamentary Counsel (a) the worker is unable to furnish the required sample of oral fluid on medical grounds or because of some physical disability; or (b) the prescribed device is incapable of testing for the presence in the sample of a prescribed drug for any reason whatsoever. (2) The transport safety officer or police officer may require the rail safety worker to allow a registered medical practitioner or an approved health professional nominated by the officer who required the sample to take from the worker a sample of blood for analysis. (3) For the purpose of subsection (2), a transport safety officer or police officer may require the rail safety worker— (a) to accompany any transport safety officer or police officer to a place where the sample of the worker's blood is to be taken; and (b) to remain there until the earlier of the following— (i) the sample is taken; (ii) 3 hours after the worker last carried out or attempted to carry out rail safety work or was involved in a prescribed notifiable occurrence. (4) A rail safety worker who allows the taking of a sample of the rail safety worker's blood in accordance with section 86CB must not be convicted or found guilty of refusing to provide a sample of oral fluid in accordance with this section. -- 143 of 159 -- Part 3.2—Amendment of Rail Safety (Local Operations) Act 2006 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 139 Authorised by the Chief Parliamentary Counsel (5) A rail safety worker must not hinder or obstruct a registered medical practitioner or an approved health professional attempting to take a sample of the blood of any other rail safety worker in accordance with this section. Penalty: $10 000. (6) No action lies against a registered medical practitioner or an approved health professional in respect of anything properly and necessarily done by the practitioner or approved health professional in the course of taking any sample of blood that the practitioner or approved health professional believed on reasonable grounds was required to be taken from any rail safety worker under this section. 86CG Evidentiary matters relating to oral fluid analysis (1) Evidence derived from a sample of oral fluid provided following a requirement made under section 86CB or 86CF is not rendered inadmissible by a failure to comply with a request under section 86CE if reasonable efforts were made to comply with the request. (2) In any proceeding under this Act, the following are admissible in evidence and, in the absence of evidence to the contrary, are proof of the authority of the transport safety officer or police officer (as the case requires)— (a) the statement of a transport safety officer that on a particular date that officer was authorised for the purposes of section 86CA; -- 144 of 159 -- Part 3.2—Amendment of Rail Safety (Local Operations) Act 2006 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 140 Authorised by the Chief Parliamentary Counsel (b) a certificate purporting to be signed by the Safety Director or the National Rail Safety Regulator that a transport safety officer named in it was authorised for the purposes of section 86CA; (c) the statement of a transport safety officer or police officer that on a particular date the officer was authorised for the purposes of section 86CB(8); (d) a certificate purporting to be signed by the Safety Director, the National Rail Safety Regulator or the Chief Commissioner of Police that a transport safety officer or police officer named in it is authorised for the purposes of section 86CB(8).". 100 New section 86D substituted For section 86D of the Rail Safety (Local Operations) Act 2006 substitute— "86D Blood tests (1) This section applies if a rail safety worker— (a) is required by a transport safety officer or police officer to submit to a blood test under section 86A(1); or (b) submits to an assessment of drug impairment when required under section 86B to do so and the assessment, in the opinion of the transport safety officer or police officer carrying it out, indicates that the rail safety worker may be impaired by a drug or drugs. -- 145 of 159 -- Part 3.2—Amendment of Rail Safety (Local Operations) Act 2006 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 141 Authorised by the Chief Parliamentary Counsel (2) A transport safety officer or police officer may require the rail safety worker to allow a registered medical practitioner or an approved health professional nominated by the officer to take from the worker a sample of that worker's blood for analysis. (3) For the purpose of subsection (2), a transport safety officer or police officer may require the rail safety worker— (a) to accompany any transport safety officer or police officer to a place where the sample of the worker's blood is to be taken; and (b) to remain there until the earlier of the following— (i) the sample is taken; (ii) 3 hours after the worker last carried out or attempted to carry out rail safety work or was involved in a prescribed notifiable occurrence. (4) A transport safety officer or police officer must not require a rail safety worker to allow a sample of the worker's blood to be taken for analysis under subsection (2) if that worker has already had a sample of blood taken under section 86E after carrying out rail safety work. (5) A person must not hinder or obstruct a registered medical practitioner or an approved health professional attempting to take a sample of the blood of any other person in accordance with this section. Penalty: $10 000. -- 146 of 159 -- Part 3.2—Amendment of Rail Safety (Local Operations) Act 2006 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 142 Authorised by the Chief Parliamentary Counsel (6) No action lies against a registered medical practitioner or an approved health professional in respect of anything properly and necessarily done by the practitioner or approved health professional in the course of taking any sample of blood that the practitioner or approved health professional believed on reasonable grounds was required to be taken from any person under this section. (7) If the person on whom an assessment of drug impairment was carried out is subsequently charged with an offence under section 77(1)(b), a copy of a written report on that assessment prepared by the transport safety officer or police officer who carried it out and containing the prescribed particulars must be served with the summons or, if a summons is not issued, within 7 days after the filing of the charge-sheet charging the offence.". 101 Rail safety worker may request sample of blood to be taken for analysis Section 86E(3) of the Rail Safety (Local Operations) Act 2006 is repealed. 102 Blood samples to be taken in certain cases In section 86H(3) of the Rail Safety (Local Operations) Act 2006— (a) paragraph (b) is repealed; (b) in paragraph (c), for "a rail safety worker; or" substitute "a rail safety worker."; (c) paragraph (d) is repealed. -- 147 of 159 -- Part 3.2—Amendment of Rail Safety (Local Operations) Act 2006 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 143 Authorised by the Chief Parliamentary Counsel 103 Evidentiary provisions—blood tests Section 86I(13)(b)(iv) of the Rail Safety (Local Operations) Act 2006 is repealed. 104 Evidentiary provisions—oral fluid samples (1) In section 86J(4)(a) of the Rail Safety (Local Operations) Act 2006 omit "to a registered medical practitioner or an approved health professional". (2) In section 86J(5) of the Rail Safety (Local Operations) Act 2006, for "a registered medical practitioner or an approved health professional" substitute "the person who carried out the procedure in the course of which the sample was provided". (3) In section 86J(11)(b)(ii) of the Rail Safety (Local Operations) Act 2006, for "by a registered medical practitioner or an approved health professional" substitute "under subsection (5)". 105 Approvals (1) In section 86L(1)(a) of the Rail Safety (Local Operations) Act 2006, for "or 86C(1)(b)" substitute ", 86C(1)(b) or 86CB". (2) After section 86L(1)(a) of the Rail Safety (Local Operations) Act 2006 insert— "(ab) section 86CA or 86CB by the National Rail Safety Regulator; or". (3) In section 86L(1)(b) of the Rail Safety (Local Operations) Act 2006, after "86C(1)(a)" insert ", 86CA or 86CB". -- 148 of 159 -- Part 3.3—Amendment of Rail Safety National Law Application Act 2013 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 144 Authorised by the Chief Parliamentary Counsel Part 3.3—Amendment of Rail Safety National Law Application Act 2013 106 Disallowance of national regulations In section 12(1)(b) of the Rail Safety National Law Application Act 2013, after "section 15(1)" insert "or 23(2)(a)(ii)". 107 Part 6 of the Rail Safety (Local Operations) Act 2006 forms part of the Law with modifications In section 43(3) of the Rail Safety National Law Application Act 2013, for "86D" substitute "86CA, 86CB, 86CF or 86D". -- 149 of 159 -- Part 3.4—Amendment of Tourist and Heritage Railways Act 2010 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 145 Authorised by the Chief Parliamentary Counsel Part 3.4—Amendment of Tourist and Heritage Railways Act 2010 108 New section 6 substituted For section 6 of the Tourist and Heritage Railways Act 2010 substitute— "6 Appointment of Registrar The Public Transport Development Authority must appoint a person employed by the Public Transport Development Authority under section 79BJ of the Transport Integration Act 2010 to be the Tourist and Heritage Railway Registrar.". -- 150 of 159 -- Part 4.1—Amendment of Transport (Safety Schemes Compliance and Enforcement) Act 2014 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 146 Authorised by the Chief Parliamentary Counsel Chapter 4—Amendment of other transport related legislation Part 4.1—Amendment of Transport (Safety Schemes Compliance and Enforcement) Act 2014 109 General powers on entry or boarding In section 8(1)(i) of the Transport (Safety Schemes Compliance and Enforcement) Act 2014, after "offence against" insert "this Act or". 110 Magistrates' Court may extend period of detention of vessel In section 12(3) of the Transport (Safety Schemes Compliance and Enforcement) Act 2014— (a) in paragraph (a), after "committed against" insert "this Act or"; (b) in paragraph (b), after "offence against" insert "this Act or". 111 Extension of time for compliance with improvement notices In section 59(4) of the Transport (Safety Schemes Compliance and Enforcement) Act 2014, in the definition of compliance period, after "notice" insert "served". -- 151 of 159 -- Part 4.1—Amendment of Transport (Safety Schemes Compliance and Enforcement) Act 2014 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 147 Authorised by the Chief Parliamentary Counsel 112 Service of prohibition notice At the foot of section 60(2) of the Transport (Safety Schemes Compliance and Enforcement) Act 2014 insert— "Note A decision whether to serve a prohibition notice is a mandatory transport safety decision—see section 175 of the Transport Integration Act 2010.". 113 Amendment of prohibition notice (1) In section 64(2) of the Transport (Safety Schemes Compliance and Enforcement) Act 2014— (a) omit "served"; (b) for "service" substitute "serving"; (c) omit "of" (where secondly occurring). (2) In section 64(3) of the Transport (Safety Schemes Compliance and Enforcement) Act 2014 omit "served" (where first occurring). 114 Certificates confirming that matters that give rise to immediate risks to safety remedied (1) In the heading to section 66 of the Transport (Safety Schemes Compliance and Enforcement) Act 2014, after "Certificates" insert "confirming". (2) In section 66(1) of the Transport (Safety Schemes Compliance and Enforcement) Act 2014— (a) for "a matter" substitute "the matter that"; (b) in paragraph (a) omit "that"; (c) in paragraph (b), before "specified" insert "is". -- 152 of 159 -- Part 4.1—Amendment of Transport (Safety Schemes Compliance and Enforcement) Act 2014 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 148 Authorised by the Chief Parliamentary Counsel (3) In section 66(4) of the Transport (Safety Schemes Compliance and Enforcement) Act 2014— (a) for "raised" substitute "stated"; (b) for "be operative on receipt by" substitute "operate when"; (c) for "of that" substitute "receives the". 115 Proceedings for offences not affected by prohibition notices or certificates In section 67(1) of the Transport (Safety Schemes Compliance and Enforcement) Act 2014— (a) after "service" insert ", amendment"; (b) omit "or amendment of a prohibition notice". 116 When Safety Director may carry out action In section 68(2)(b) of the Transport (Safety Schemes Compliance and Enforcement) Act 2014 omit "owner's or". 117 Power of Safety Director to take other remedial action For section 69(1) of the Transport (Safety Schemes Compliance and Enforcement) Act 2014 substitute— "(1) This section applies if— (a) the Safety Director reasonably believes that circumstances in which a prohibition notice can be served exist; and (b) after taking reasonable steps, the Safety Director cannot find the person with control or management of the public transport premises or marine premises -- 153 of 159 -- Part 4.1—Amendment of Transport (Safety Schemes Compliance and Enforcement) Act 2014 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 149 Authorised by the Chief Parliamentary Counsel or vessel in relation to which the notice would be served.". 118 Costs of remedial or other action In section 70(b) of the Transport (Safety Schemes Compliance and Enforcement) Act 2014, for "to" substitute "on". 119 Injunctions for non-compliance with notices In section 82(2)(a) of the Transport (Safety Schemes Compliance and Enforcement) Act 2014, for "issued" substitute "served". 120 Release on the giving of a safety undertaking In section 113(3)(a) and (b) of the Transport (Safety Schemes Compliance and Enforcement) Act 2014, for "; and" substitute "; or". -- 154 of 159 -- Part 4.2—Amendment of Transport Accident Act 1986 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 150 Authorised by the Chief Parliamentary Counsel Part 4.2—Amendment of Transport Accident Act 1986 121 Transport accident charge In section 109(4) of the Transport Accident Act 1986, for "6 months" substitute "3 months". 122 New Division 12 of Part 11 inserted After Division 11 of Part 11 of the Transport Accident Act 1986 insert— "Division 12—Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 232 Amendment of section 109 (transport accident charge) Section 109, as amended by section 121 of the Transport Legislation Amendment (Road, Safety, Rail and Other Matters) Act 2017, applies to all transport accidents, regardless of when the accident occurred.". -- 155 of 159 -- Part 4.3—Amendment of Marine (Drug, Alcohol and Pollution Control) Act 1988 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 151 Authorised by the Chief Parliamentary Counsel Part 4.3—Amendment of Marine (Drug, Alcohol and Pollution Control) Act 1988 123 Subject matter for regulations In items 62CA and 62CB of Schedule 5 to the Marine (Drug, Alcohol and Pollution Control) Act 1988 omit "taken under section 31A". -- 156 of 159 -- Part 4.4—Amendment of Port Management Act 1995 Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 152 Authorised by the Chief Parliamentary Counsel Part 4.4—Amendment of Port Management Act 1995 124 Statute law revision (1) In section 49S(2)(a) of the Port Management Act 1995, for "risk and" substitute "risk; and". (2) In section 49ZB(a)(i)(B), (a)(iii) and (b)(ii) of the Port Management Act 1995, for "provider" substitute "operator". (3) In the heading to section 49ZD of the Port Management Act 1995, after "relation" insert "to". -- 157 of 159 -- Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 153 Authorised by the Chief Parliamentary Counsel Chapter 5—Repeal of amending Act 125 Repeal of amending Act This Act is repealed on 1 January 2021. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═════════════ -- 158 of 159 -- Endnotes Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 No. 68 of 2017 154 Authorised by the Chief Parliamentary Counsel Endnotes 1 General information See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information. † Minister's second reading speech— Legislative Assembly: 2 November 2017 Legislative Council: 21 November 2017 The long title for the Bill for this Act was "A Bill for an Act to amend the Road Safety Act 1986, the Road Legislation Further Amendment Act 2016, the Rail Management Act 1996, the Rail Safety (Local Operations) Act 2006, the Rail Safety National Law Application Act 2013, the Tourist and Heritage Railways Act 2010, the Transport (Safety Schemes Compliance and Enforcement) Act 2014, the Transport Accident Act 1986, the Marine (Drug, Alcohol and Pollution Control) Act 1988 and the Port Management Act 1995 and for other purposes." -- 159 of 159 --