Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009

i Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1 Purposes 1 2 Commencement 3 PART 2—AMENDMENT OF THE MARINE ACT 1988 5 3 Amendment of definition section 5 4 Effecting registration, renewal or transfer 5 5 New Part 7A inserted 5 PART 7A—IMPOUNDMENT, IMMOBILISATION AND FORFEITURE OF RECREATIONAL VESSELS 5 Division 1—Preliminary 5 62A Part 7A definitions 5 62B Part does not affect other penalties 9 62C Part has prospective application 9 Division 2—Impoundment or immobilisation of recreational vessels 10 62D Powers of police 10 62E Seizure of recreational vessel 11 62F Surrender of recreational vessel 12 62G Impoundment or immobilisation of a recreational vessel 14 62H Authorised persons 15 62I Notice to operator, owner or registered person 17 62J Content of notice 18 62K Review by a senior police officer 19 62L Release of recreational vessel by Victoria Police 20 62M Appeal rights 21 62N Offences 22 62O Recovery of recreational vessel 23 62P Crown to pay costs if operator found not guilty or charges not proceeded with 24 -- 1 of 152 -- Section Page ii Division 3—Impoundment, immobilisation or forfeiture of recreational vessels by court order 24 62Q Impoundment or immobilisation order 24 62R Forfeiture order 26 62S Application for an impoundment or immobilisation order or a forfeiture order 27 62T Notice of application 28 62U Interest in recreational vessel not to be transferred 30 62V Notice in case of 2 or more charges 30 62W Direction not to transfer registration or register recreational vessel 33 62X Director not to transfer registration or register recreational vessel 35 62Y Cessation of direction under this Act does not affect any suspension 36 62Z Hearing of application 36 62ZA Application for variation of order 38 62ZB When order takes effect 39 62ZC Police powers 40 62ZD Liability for costs of impoundment or immobilisation 40 62ZE Ownership rights 41 62ZF Third party protection from forfeiture order 41 Division 4—Search and seizure warrants 43 62ZG Application for search and seizure warrant 43 62ZH Search and seizure warrant 45 62ZI Record of proceedings for search and seizure warrant 46 62ZJ Announcement before entry 46 62ZK Copy of search and seizure warrant to be given to occupier 46 62ZL Use of assistants to execute search and seizure warrant 47 62ZM Application of Magistrates' Court Act 1989 47 62ZN Expiry of search and seizure warrant 47 62ZO Report on execution of search and seizure warrant 48 62ZP Obstruction or hindrance of person executing search a nd seizure warrant 49 Division 5—Disposal of recreational vessels 49 Subdivision 1—Disposal of recreational vessels, items and things 49 62ZQ Sale or disposal of uncollected recreational vessels and items 49 -- 2 of 152 -- Section Page iii Subdivision 2—Disposal of recreational vessels, items or things if forfeiture order has taken effect 51 62ZR Sale or disposal of recreational vessel subject to forfeiture order 51 62ZS Application of proceeds of sale 51 Subdivision 3—Disposal of recreational vessels, items or things subject to disposal order 52 62ZT Disposal of recreational vessel, item or thing subject to disposal order 52 62ZU Notice to be given of intention to apply for disposal order 52 62ZV Application for disposal order 55 62ZW Hearing of application for and making of disposal order 55 62ZX Application of proceeds of sale 56 Division 6—Miscellaneous 56 62ZY Service of notices under Part 7A 56 6 Exclusion orders 57 7 Insertion of new section 85ATA 58 85ATA Corporations displacement provision 58 8 New Part 10AA inserted 58 PART 10AA—PROHIBITION OF USE OF RECREATIONAL VESSELS AND HIRE AND DRIVE VESSELS 58 Division 1—Preliminary 58 112A Part 10AA definitions 58 112B Part does not affect other penalties 59 112C Part has prospective application 59 Division 2—Embargo notices and prohibition directions 60 112D Power to issue embargo notices 60 112E Police power to prohibit operation of vessels 62 Division 3—Authorised officers 63 112F Appointment 63 112G Identity cards 64 112H Return of identity cards 65 112I Production of identity card 65 9 Subject matter for regulations 66 -- 3 of 152 -- Section Page iv PART 3—AMENDMENT OF THE PORT SERVICES ACT 1995 67 10 Definitions 67 11 New Part 4A inserted 67 PART 4A—REGULATION OF TOWAGE SERVICES 67 Division 1—Preliminary 67 73A Definitions 67 Division 2—Towage requirements 68 73B Towage requirements determination 68 73C Process for making a towage requirements determination 70 73D Entitlement to make submissions 70 Division 3—Notification of towage service providers 71 73E Offence to provide towage services without notification 71 73F Making notification 71 73G Procedure for acknowledgment of notification 72 73H Period for which notification remains in force 72 73I Record of towage service providers 72 Division 4—Towage conditions 73 73J Determination of towage conditions 73 73K Limitations on making towage conditions determinations 73 73L Service and publication of determination 75 73M Coming into effect of towage conditions 75 73N Process for making towage conditions determination 76 73O Compliance with determined towage condition 76 Division 5—General matters 76 73P Review by VCAT 77 73Q Period for making application to VCAT 77 73R Repeal of Part 78 12 New Part 5B inserted 78 PART 5B—POWERS AS TO CERTAIN HAZARDOUS OR POLLUTING ACTIVITIES OR THINGS 78 Division 1—Preliminary 78 88I Definitions 78 -- 4 of 152 -- Section Page v Division 2—Pollution abatement 78 88J Pollution abatement 78 88K Recovery of costs of clean up 79 88L Relationship with the Environment Protection Act 1970 80 Division 3—Hazardous port activities 80 88M Hazardous port activity notice 80 88N Hazardous port activity direction 80 88O Offence not to comply with hazardous port activity direction 81 Division 4—Abandoned or unclaimed goods or things 81 88P Offence to leave things in port waters or on port land 81 88Q Removal of things 81 88R Powers when moving things 82 88S Requirement to make enquiries as to owner of thing 83 88T Disposal of thing 83 88U Recovery of costs 84 88V Payment of compensation 85 88W Proceeds of disposal where owner not located 86 13 Insertion of section after section 96 86 97 Power to prosecute 86 14 Regulation making powers 86 PART 4—AMENDMENT OF THE TRANSPORT ACT 1983 89 15 New Part VIIA inserted in the Transport Act 1983 89 PART VIIA—ENFORCEMENT AND RELATED POWERS FOR THE PORT OF MELBOURNE 89 Division 1—Preliminary 89 230K Definition 89 230L Appointment 89 230M Identity cards 90 230N Return of identity cards 90 230O Production of identity card 91 Division 2—Powers of entry and search of vessels 92 230P Power to enter and inspect vessels 92 230Q Production of identity card by port safety officers before vessel searches 93 230R Consent not needed for inspections 93 -- 5 of 152 -- Section Page vi Division 3—Powers of entry and search of premises 94 230S Entry of premises with consent 94 230T Entry of premises without consent 96 230U Powers that may be exercised on entry 97 230V Securing a site 98 230W Offence to enter secured site 98 Division 4—Provisions as to use of or seizure of equipment or goods 98 230X Use of equipment to examine or process things 98 230Y Copies of certain things seized to be given 99 230Z Access to seized things 100 230ZA Retention and return of seized documents or things 100 230ZB Magistrates' Court may extend 3 month period 101 Division 5—General 101 230ZC Requirement to assist port safety officer during entry 101 230ZD Protection against self-incrimination 102 230ZE Persons who may bring proceedings 103 PART 5—AMENDMENT OF THE ROAD SAFETY ACT 1986 104 16 Suspension of approval of alcohol interlock supplier 104 17 Conditions on approvals 105 18 New sections 50AAIA, 50AAIB and 50AAIC inserted 106 50AAIA Power of immediate suspension 106 50AAIB Inquiry 107 50AAIC Effect of suspension 108 19 Impoundment regime 108 20 Disclosure of information 108 21 New sections 92A and 92B inserted 110 92A Minister may make declaration in exceptional circumstances 110 92B Disclosure of personal information in exceptional circumstances 111 22 Exemptions from fatigue management requirements 113 23 Statute law revision 114 PART 6—AMENDMENT OF THE ROAD MANAGEMENT ACT 2004 116 24 Powers of a road authority 116 25 Responsible road authority 116 26 Removal of stationary vehicles 116 27 Removal of abandoned property 117 28 Regulations 117 29 Power to move other obstructions 118 -- 6 of 152 -- Section Page vii PART 7—AMENDMENT OF THE MELBOURNE CITY LINK ACT 1995 119 30 Repeal 119 31 Statute law revision 119 PART 8—AMENDMENT OF THE ACCIDENT TOWING SERVICES ACT 2007 120 32 Roster entitlements 120 33 New sections inserted after section 140H 120 140I Offence not to carry permit when driving 120 140J Offence not to produce permit when asked 121 34 Direction to state name and address 122 35 Regulation making powers 122 PART 9—AMENDMENTS RELATING TO VICROADS 123 Division 1—Transport Act 1983 123 36 Amendment of section 16—Objects and functions of Roads Corporation 123 Division 2—EastLink Project Act 2004 123 37 Amendment of section 3—Definitions 123 38 New section 4A inserted 123 4A Functions and powers of VicRoads 123 39 Consequential amendments 125 40 New Part 12 inserted 126 PART 12—TRANSFER OF PROJECT FROM THE SOUTHERN AND EASTERN INTEGRATED TRANSPORT AUTHORITY TO VICROADS 126 260 Definitions 126 261 Transfer of the Project 127 262 Property transferred to VicRoads 128 263 Transfer subject to encumbrances 129 264 Substitution of party to agreement 129 265 Instruments 130 266 Proceedings 130 267 Interests in land 130 268 Action by Registrar of Titles 131 269 Taxes 131 270 Evidence 131 271 Transfer of employees 132 272 Validity of things done under this Part 133 -- 7 of 152 -- Section Page viii Division 3—Southern and Eastern Integrated Transport Authority Act 2003 135 41 Amendment of section 3—Definitions 135 42 Repeal of section 4—The EastLink Project 135 PART 10—AMENDMENT OF THE MAJOR TRANSPORT PROJECTS FACILITATION ACT 2009 136 43 Statute law revision 136 PART 11—AMENDMENT OF THE CRIMES ACT 1958 138 44 New section 317B inserted 138 317B Interpretation 138 45 Culpable driving causing death 139 46 New section 615 inserted in Crimes Act 1958 139 615 Transitional provision—Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 139 47 Evidentiary provisions in Marine Act 1988 139 48 Cancellation of operator licence under Marine Act 1988 140 49 Consequential amendments 141 PART 12—REPEAL 143 50 Repeal of Act 143 ═══════════════ ENDNOTES 144 -- 8 of 152 -- 1 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 † No. 93 of 2009 [Assented to 15 December 2009] The Parliament of Victoria enacts: PART 1—PRELIMINARY 1 Purposes The purposes of this Act are— (a) to amend the Marine Act 1988— (i) to provide for embargo notices to be issued prohibiting the operation of a recreational vessel; Victoria -- 9 of 152 -- Part 1—Preliminary Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 2 (ii) to provide for the giving of directions prohibiting a person from operating any recreational vessel or a hire and drive vessel for a specified period in certain circumstances; (iii) to enable the seizure and impoundment or immobilisation of recreational vessels in certain circumstances; (iv) to allow the court to order the impoundment, immobilisation or forfeiture of recreational vessels in certain circumstances; (v) to make further provision in relation to minor matters in that Act; (b) to amend the Port Services Act 1995 to make provision— (i) in relation to the provision of towage services; (ii) as to certain hazardous or polluting activities or things; (iii) as to other minor matters; (c) to amend the Transport Act 1983, to make further provision as to the functions of the Roads Corporation and as to enforcement powers and other minor matters; (d) to amend the Road Safety Act 1986 in relation to— (i) disclosure of information; and (ii) suppliers of alcohol interlocks; and (iii) fatigue management requirements for rail replacement bus services, emergency services and bus services provided in response to an emergency; s. 1 -- 10 of 152 -- Part 1—Preliminary Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 3 (e) to amend the Road Management Act 2004 in relation to— (i) clearance of obstructions on roads; and (ii) regulation-making powers; (f) to amend the Melbourne City Link Act 1995 to repeal a redundant provision; (g) to amend the Accident Towing Services Act 2007 to make further provision in relation to the holders of tow truck trainee permits and other minor matters; (h) to make amendments to the EastLink Project Act 2004 and the Southern and Eastern Integrated Transport Authority Act 2003 in relation to the EastLink project; (i) to make amendments to the Major Transport Projects Facilitation Act 2009 of a statute law revision nature; (j) to amend the Crimes Act 1958 to extend the offences of culpable driving causing death and dangerous driving causing death or serious injury to the operating of vessels and to make consequential amendments to other Acts; (k) to make other amendments of a statute law revision nature. 2 Commencement (1) Section 1 and this section come into operation on the day after the day on which this Act receives the Royal Assent. (2) Section 23(3) is deemed to have come into operation on 9 November 2009. (3) Subject to subsection (4), the remaining provisions of this Act come into operation on a day or days to be proclaimed. s. 2 -- 11 of 152 -- Part 1—Preliminary Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 4 (4) If a provision referred to in subsection (3) does not come into operation before 1 September 2011, it comes into operation on that day. __________________ s. 2 -- 12 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 5 PART 2—AMENDMENT OF THE MARINE ACT 1988 3 Amendment of definition section After section 3(4) of the Marine Act 1988 insert— "(5) In the case of a contravention in the port of Melbourne of a relevant marine safety law that is constituted by a contravention of the Port Services Act 1995, for the purposes of Divisions 4 and 5 of Part 8, a reference to an inspector is taken to include a reference to a port safety officer appointed under Part VIIA of the Transport Act 1983.". 4 Effecting registration, renewal or transfer In section 10(1) of the Marine Act 1988, after "the regulations" insert "and Division 3 of Part 7A". 5 New Part 7A inserted After Part 7 of the Marine Act 1988 insert— 'PART 7A—IMPOUNDMENT, IMMOBILISATION AND FORFEITURE OF RECREATIONAL VESSELS Division 1—Preliminary 62A Part 7A definitions (1) In this Part— appeal period, in relation to a conviction or an impoundment or immobilisation order or a forfeiture order, means the period ending— (a) if the period provided for the lodging of an appeal against the conviction or order has ended s. 3 See: Act No. 52/1998. Reprint No. 7 as at 12 December 2007 and amending Act No 17/2009. LawToday: www. legislation. vic.gov.au -- 13 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 6 without such an appeal having been lodged, at the end of that period; or (b) if an appeal against the conviction or order has been lodged, when the appeal is abandoned or finally determined; authorised person means a person authorised by a member of the police force under section 62H; conviction, in relation to a relevant offence, includes a finding of guilt of the relevant offence without the recording of a conviction; designated costs means the cost of impounding or immobilising a recreational vessel under this Part including, where relevant, the cost of— (a) moving the recreational vessel to a holding yard or place where the recreational vessel is to be immobilised; and (b) storing the recreational vessel at the holding yard or place where the recreational vessel is immobilised; and (c) releasing the recreational vessel from the holding yard or from immobilisation— and includes any additional costs incurred if the recreational vessel is impounded or immobilised for longer than the designated period or the period specified under an impoundment or immobilisation order; s. 5 -- 14 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 7 designated period, in relation to a recreational vessel, means the period of 48 hours beginning with the seizure or surrender of the recreational vessel under section 62E or 62F, but if the period expires outside of normal business hours, the period extends to 9.00 a.m. on the next business day, being a day other than a Saturday, a Sunday or a public holiday appointed under the Public Holidays Act 1993; disposal order means an order made under section 62ZW; forfeiture order means an order made by a court under section 62R; holding yard means a place used for the storage of recreational vessels impounded under this Part; impoundment or immobilisation order means an order made by a court under section 62Q; landing place includes the following— (a) an intersection between land and water at which it is reasonably safe to land a vessel; (b) a place intended for the landing or berthing of vessels, including, but not limited to, a wharf, boat ramp, marina, pier or jetty; member of police personnel has the same meaning as in the Police Regulation Act 1958; s. 5 -- 15 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 8 operator, in relation to a recreational vessel, means the person who is operating (within the meaning of Part 10A) the recreational vessel; public place includes, but is not limited to— (a) any public place within the meaning of public place in the Summary Offences Act 1966; and (b) State waters; registered person, in relation to a recreational vessel, means the person who is registered as the owner or operator of the recreational vessel in accordance with regulations made under this Act; relevant court, in relation to an application made under this Part, means— (a) the court with jurisdiction to hear and determine the relevant offence to which the application relates; or (b) if an application is made after the sentencing of the operator for a relevant offence, the Magistrates' Court; relevant offence means an offence against section 22; safe landing place means a landing place at which it is safe to immobilise the relevant vessel for the balance of the designated period, taking into account the weather conditions and facilities available during the designated period; s. 5 -- 16 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 9 search and seizure warrant means a warrant issued under section 62ZH(1); senior police officer means a member of the police force of or above the rank of Inspector. (2) For the purposes of an application for an impoundment or immobilisation order or a forfeiture order, charges for more than one relevant offence arising out of the same single set of circumstances are to be treated as a charge for one relevant offence. (3) For the purposes of subsection (2), a single set of circumstances is constituted by one continuous period during which a person continues to operate or be in charge of a recreational vessel. 62B Part does not affect other penalties The impoundment, immobilisation or forfeiture of a vessel under this Part arising out of the commission of a relevant offence is in addition to, and does not limit or otherwise affect, any penalty that may be imposed on the person for the relevant offence other than under this Part. 62C Part has prospective application This Part applies only to relevant offences committed on or after the commencement of section 5 of the Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009. s. 5 -- 17 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 10 Division 2—Impoundment or immobilisation of recreational vessels 62D Powers of police (1) If a member of the police force believes on reasonable grounds that a recreational vessel is being or has been used in the commission of a relevant offence, he or she may— (a) seize the recreational vessel or require it to be surrendered; (b) impound the recreational vessel for the designated period; (c) immobilise the recreational vessel for the designated period; (d) authorise any person under section 62H to assist in seizing, impounding or immobilising the recreational vessel. (2) If a member of the police force has exercised a power to seize, impound or immobilise a recreational vessel under this Division in relation to a particular relevant offence and the recreational vessel has since been released— (a) the power to seize, impound or immobilise that recreational vessel under this Division for that particular relevant offence may not be exercised again; and (b) an embargo notice must not be issued in respect of the recreational vessel for that particular relevant offence; and (c) a prohibition direction must not be issued to the operator of the vessel at the time of the particular relevant offence in respect of that offence. s. 5 -- 18 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 11 (3) For the purposes of this section— embargo notice means a notice under section 112D; prohibition direction means a direction to a person under section 112E. 62E Seizure of recreational vessel (1) For the purposes of impounding or immobilising a recreational vessel under this Part, a member of the police force may seize the recreational vessel— (a) from a public place; or (b) from a place that is not a public place with the consent of the owner or occupier of that place; or (c) from a place that is not a public place with a search and seizure warrant. (2) The period within which a recreational vessel may be seized under subsection (1) is— (a) in the case of seizure from a public place or a place that is not a public place with the consent of the owner or occupier of that place— (i) 48 hours after the alleged commission of the relevant offence; or (ii) if a notice is served under section 62F(1), 10 days after the expiry of the period specified in that notice; or (b) in the case of seizure from a place that is not a public place under a search and seizure warrant, the period specified in that warrant. s. 5 -- 19 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 12 (3) In order to seize a recreational vessel under subsection (1), a member of the police force may— (a) board or enter the recreational vessel, using reasonable force if necessary; (b) operate or move the recreational vessel by any reasonable means, including, but not limited to, by trailer, motor vehicle or vessel; (c) if, after having taken reasonable steps to obtain the keys, the keys are not available, cause any locking device or other feature of the recreational vessel that is impeding the seizure of the recreational vessel to be removed, dismantled or neutralised; (d) seize, operate or move a trailer, motor vehicle or other thing on which the recreational vessel is resting or by which the recreational vessel is transported by the operator, owner or registered person. 62F Surrender of recreational vessel (1) If a member of the police force believes on reasonable grounds that a recreational vessel has been used in the commission of a relevant offence, he or she may serve a notice on the registered person or owner of the recreational vessel requiring the surrender of the recreational vessel. (2) A notice served under subsection (1) must— (a) be served within 10 days of the member of the police force forming the belief that the recreational vessel has been used in the commission of a relevant offence; and s. 5 -- 20 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 13 (b) specify a period within which the recreational vessel must be surrendered which must not commence less than 7 days after the notice is served. (3) Service of a notice under subsection (1) may be effected— (a) by serving it personally on the owner or registered person of the recreational vessel or, if that person is a company, on a director, secretary or other officer of the company; or (b) by posting it, addressed to the person, to the registered address or the residential address of the owner or registered person of the recreational vessel. (4) A notice under subsection (1) must include— (a) a statement by a member of the police force that the recreational vessel is liable to impoundment or immobilisation because that member believes on reasonable grounds that the recreational vessel was used in the commission of a relevant offence; and (b) a statement of the nature of the relevant offence and the date and time when the relevant offence is alleged to have been committed; and (c) the name of the operator of the recreational vessel who is alleged to have committed the relevant offence; and s. 5 -- 21 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 14 (d) the date, time and place at which the recreational vessel is required to be surrendered to a member of police personnel; and (e) a statement that if the recreational vessel is not surrendered at the date, time and place specified in the notice a member of the police force may seize the recreational vessel in accordance with section 62E; and (f) the prescribed particulars (if any). (5) An owner or registered person served with a notice under subsection (1) must comply with the notice, unless the owner or registered person has a reasonable excuse. Penalty: 60 penalty units. (6) If the recreational vessel is not surrendered to a member of police personnel at the date, time and place specified in a notice served under subsection (1), a member of the police force may, within 10 days after the period specified in the notice expires, exercise any power under section 62D or 62E to seize the recreational vessel. 62G Impoundment or immobilisation of a recreational vessel If a recreational vessel is seized or surrendered in accordance with this Division, a member of the police force may do any one or more of the following— (a) move, or cause to be moved, the recreational vessel to a holding yard by any reasonable means and impound it there for the balance of the designated period; s. 5 -- 22 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 15 (b) move, or cause to be moved, a trailer, motor vehicle or other thing by which the recreational vessel is transported by the operator, owner or registered person or on which the recreational vessel is resting to a holding yard and impound it there for the balance of the designated period; (c) cause the recreational vessel to be immobilised at a safe landing place or on land or on anything on land (including, but not limited to, a trailer) for the balance of the designated period; (d) cause a trailer or other thing on which the recreational vessel is resting to be immobilised for the balance of the designated period; (e) do anything else reasonably necessary to impound or immobilise the recreational vessel. 62H Authorised persons In exercising powers under section 62E, 62G or 62ZC, a member of the police force may authorise any person to assist him or her to— (a) board or enter a recreational vessel, using reasonable force if necessary; (b) if the recreational vessel is on water— (i) operate or move a recreational vessel by any reasonable means including, but not limited to, by towing vessel; (ii) move the recreational vessel onto land or onto a trailer, motor vehicle or other thing on land; s. 5 -- 23 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 16 (c) if the recreational vessel is on land or on any thing that is on land, move by any reasonable means including, but not limited to, by means of a trailer or towing vehicle— (i) the recreational vessel; or (ii) a trailer, motor vehicle or other thing by which the recreational vessel is transported by the operator, owner or registered person or on which the recreational vessel is resting— in order to move the recreational vessel to a holding yard; (d) cause any locking device or other feature of the recreational vessel that is impeding the exercise of powers under this Part to be removed, dismantled or neutralised; (e) operate or move a trailer, vessel, motor vehicle or other thing on which the recreational vessel is resting or by which the recreational vessel is transported by the operator, owner or registered person; (f) cause a recreational vessel to be immobilised at a safe landing place or on land by any reasonable means including, but not limited to, by immobilising a trailer or other thing on which the recreational vessel is resting; (g) store a recreational vessel and, if applicable, a trailer or other thing on which the recreational vessel is resting, in a holding yard; s. 5 -- 24 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 17 (h) release a recreational vessel and, if applicable, a trailer or other thing on which the recreational vessel is resting, when authorised by a member of the police force to do so. 62I Notice to operator, owner or registered person (1) As soon as is reasonably practicable after a recreational vessel is impounded or immobilised under section 62G, a member of the police force must serve written notice of the impoundment or immobilisation on— (a) the operator of the recreational vessel; and (b) the registered person of the recreational vessel, if he or she is not the person referred to in paragraph (a); and (c) the owner of the recreational vessel, if he or she is not a person referred to in paragraph (a) or (b). (2) A person who— (a) is an owner or registered person of a recreational vessel in relation to which a notice under subsection (1) has been served; and (b) who does not have an interest or the sole interest in that recreational vessel— must, as soon as is reasonably practicable, take reasonable steps to serve a copy of the notice on any person who he or she is aware has an interest in the recreational vessel. Note See section 62ZY for how a notice may be served. s. 5 -- 25 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 18 62J Content of notice A notice under section 62I must be in a form approved by the Chief Commissioner of Police and must state— (a) the operator's name; and (b) the identification mark of the recreational vessel; and (c) the engine number and the length, breadth and colour of the recreational vessel; and (d) the date and time when the recreational vessel was impounded or immobilised; and (e) the date of the relevant offence in respect of which the recreational vessel has been impounded or immobilised; and (f) the date and time when the recreational vessel is eligible for release; and (g) the process by which the impounded or immobilised recreational vessel may be released, including— (i) the location of the recreational vessel; and (ii) the designated costs payable; and (iii) if relevant, the contact details of the person who can release an immobilised recreational vessel; and (iv) that satisfactory evidence of the entitlement of a person seeking to have the recreational vessel released may be required before s. 5 -- 26 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 19 the recreational vessel will be released; and (h) that if a charge-sheet is filed containing a charge for a relevant offence and the operator has committed one or more previous relevant offences since the commencement of section 5 of the Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009, the Chief Commissioner of Police may, under section 62S, apply to the relevant court for an impoundment or immobilisation order under section 62Q or a forfeiture order under section 62R; and (i) if applicable, that a trailer, motor vehicle or other thing has been impounded or immobilised under section 62G for the purposes of impounding or immobilising the recreational vessel; and (j) any other prescribed particulars. 62K Review by a senior police officer (1) A member of the police force who impounds or immobilises a recreational vessel under section 62G, or who authorises another person to do so, must, as soon as is practicable and in any event within 48 hours after the recreational vessel is impounded or immobilised, notify a senior police officer of the grounds on which he or she relied in forming the belief that the recreational vessel was used in the commission of a relevant offence. s. 5 -- 27 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 20 (2) A senior police officer who is notified in accordance with subsection (1) must make inquiries into the circumstances of the impoundment or immobilisation and if, after making those inquiries, he or she is not satisfied that there were reasonable grounds to impound or immobilise the recreational vessel, must ensure that the recreational vessel is released and returned to the owner or registered person as soon as is practicable. 62L Release of recreational vessel by Victoria Police (1) A recreational vessel impounded or immobilised under section 62G must be released to the owner, registered person or any other person entitled to possession as soon as is practicable if— (a) a member of the police force is satisfied that, at the time the relevant offence was committed, the recreational vessel used in the commission of the relevant offence was stolen; or (b) under section 62K a senior police officer is not satisfied that there were reasonable grounds to impound or immobilise the recreational vessel; or (c) a senior police officer considers it reasonable or necessary to release the recreational vessel; or (d) the Magistrates' Court has made an order under section 62M(3). (2) If a recreational vessel is released in accordance with subsection (1)(a) or (b) the Crown is liable to pay the designated costs. s. 5 -- 28 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 21 (3) A senior police officer may, at his or her discretion, waive the designated costs if a recreational vessel is released in accordance with subsection (1)(c). (4) If— (a) a recreational vessel is released without any designated costs payable by a person seeking the release of the recreational vessel in accordance with this section; and (b) the operator is subsequently found guilty of the relevant offence for which the recreational vessel was impounded or immobilised— the Chief Commissioner of Police may apply to the relevant court for an order that the operator pay to the Chief Commissioner of Police the designated costs. 62M Appeal rights (1) If a recreational vessel is impounded or immobilised under section 62G, a person whose interests are substantially affected by the impoundment or immobilisation may apply to the Magistrates' Court for an order that the recreational vessel be released on the ground that the impoundment or immobilisation is causing, or will cause, exceptional hardship to the applicant or any other person. (2) An application under subsection (1) may be made at any time while the recreational vessel remains impounded or immobilised, including when the impoundment or immobilisation continues for longer than the designated period as a result of non-payment of the designated costs. s. 5 -- 29 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 22 (3) On an application made under subsection (1), the Magistrates' Court may make an order that a recreational vessel impounded or immobilised under this Part be released to a specified person if the Court is satisfied that the impoundment or immobilisation is causing, or will cause, exceptional hardship to the applicant or any other person. (4) If the Magistrates' Court makes an order under subsection (3), it may order that the applicant is not liable to pay all or part of the designated costs. 62N Offences (1) A person must not, except in accordance with this Part or section 99A or 99B, move an impounded or immobilised recreational vessel or tamper with any equipment used to immobilise a recreational vessel. Penalty: 60 penalty units. (2) It is not an offence under subsection (1) to move an impounded or immobilised recreational vessel or tamper with any of equipment used to immobilise a recreational vessel— (a) if the impounded or immobilised recreational vessel is obstructing access to any property and it is necessary to move the recreational vessel to protect any person or property from a risk of imminent harm; or (b) to protect the recreational vessel from a risk of imminent harm; or (c) to comply with a direction made under this Act by the harbour master, the Director, a member of the police force or an authorised officer. s. 5 -- 30 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 23 (3) A person must not obstruct or hinder a member of the police force in the valid exercise of a power under this Part. Penalty: 60 penalty units. 62O Recovery of recreational vessel (1) A recreational vessel impounded or immobilised under section 62G must be released to the owner, registered person or any other person entitled to possession of it— (a) subject to the provisions of this Part, on the expiration of the designated period; and (b) on the payment of the designated costs; and (c) on provision of satisfactory evidence, as prescribed, of that person's identity and his or her entitlement to recover the recreational vessel; and (d) subject to satisfactory compliance with the prescribed particulars (if any). (2) If no decision or order to release the recreational vessel has been made under section 62L or 62M, a member of the police force or an authorised person may— (a) retain possession of an impounded recreational vessel; or (b) continue to immobilise a recreational vessel— in accordance with this Part until the designated costs are paid, even if the period during which the recreational vessel is impounded or immobilised is longer than the designated period. s. 5 -- 31 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 24 62P Crown to pay costs if operator found not guilty or charges not proceeded with If— (a) the operator of a recreational vessel is subsequently found not guilty of the relevant offence in respect of which the recreational vessel was impounded or immobilised; or (b) no charge-sheet is filed containing a charge for a relevant offence or such a charge-sheet is filed but not proceeded with within 12 months after the recreational vessel was impounded or immobilised— then— (c) the Crown is liable to refund any designated costs paid by any person; or (d) the recreational vessel, if not already recovered by the owner, registered person or any other person entitled to possession of it, must be immediately released without any designated costs payable by the person seeking recovery of the recreational vessel. Division 3—Impoundment, immobilisation or forfeiture of recreational vessels by court order 62Q Impoundment or immobilisation order (1) On the application of the Chief Commissioner of Police under section 62S(1), if an operator is found guilty of a relevant offence the relevant court may order that the recreational vessel used in the commission of the relevant offence be s. 5 -- 32 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 25 impounded or immobilised for a period of up to 3 months. (2) An order under subsection (1) must not be made unless the relevant court is satisfied— (a) that the operator has been found guilty of one other relevant offence committed in the period of 3 years before the commission of the relevant offence and on or after the commencement of section 5 of the Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009; and (b) that at the time the relevant offence was committed the recreational vessel was not— (i) a stolen recreational vessel; or (ii) being used in any prescribed circumstances. (3) An order made under subsection (1) must specify the time and place at which the owner or registered person of the recreational vessel is required to surrender the recreational vessel to a member of police personnel. (4) The owner or registered person of the recreational vessel must not, without reasonable excuse, fail to surrender the recreational vessel at the time and place specified in the order made under subsection (1). Penalty: 60 penalty units. s. 5 -- 33 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 26 62R Forfeiture order (1) On the application of the Chief Commissioner of Police under section 62S(1), if an operator is found guilty of a relevant offence the relevant court may order that the recreational vessel used in the commission of the relevant offence be forfeited to the Crown. (2) An order under subsection (1) may only be made if the relevant court is satisfied— (a) that the accused has been found guilty of 2 or more other relevant offences committed in the period of 3 years before the commission of the relevant offence and on or after the commencement of section 5 of the Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009; and (b) that at the time the relevant offence was committed the recreational vessel was not— (i) a stolen recreational vessel; or (ii) being used in any prescribed circumstances. (3) An order made under subsection (1) must specify the time and place at which the owner or registered person of the recreational vessel is required to surrender the recreational vessel to a member of police personnel. s. 5 -- 34 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 27 (4) The owner or registered person of the recreational vessel must not, without reasonable excuse, fail to surrender the recreational vessel at the time and place specified in the order made under subsection (1). Penalty: 60 penalty units. 62S Application for an impoundment or immobilisation order or a forfeiture order (1) The Chief Commissioner of Police may make an application for an impoundment or immobilisation order or a forfeiture order to the relevant court if the Chief Commissioner believes on reasonable grounds that— (a) the recreational vessel— (i) was used in the commission of the relevant offence; and (ii) at the time the relevant offence was committed, was not stolen or used in prescribed circumstances; and (b) the operator has been found guilty of another relevant offence or other relevant offences (as the case requires) committed within the period of 3 years before the commission of the relevant offence and on or after the commencement of section 5 of the Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009. s. 5 -- 35 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 28 (2) An application under subsection (1) may be made at any time after a charge-sheet is filed charging a relevant offence, but may not be made later than 28 days after the operator is sentenced for that relevant offence. 62T Notice of application (1) If the Chief Commissioner of Police intends to make an application under section 62S(1), he or she must, at least 28 days before making the application, serve notice of the intended application on— (a) the operator of the recreational vessel in respect of which an application is to be made; and (b) the registered person of the recreational vessel, if he or she is not the person referred to in paragraph (a); and (c) the owner of the recreational vessel, if he or she is not a person referred to in paragraph (a) or (b); and (d) any person who the Chief Commissioner of Police is aware has an interest in the recreational vessel; and (e) the Director. Note See section 62ZY for how a notice may be served. (2) A person who— (a) is notified under subsection (1)(a), (b) or (c); and s. 5 -- 36 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 29 (b) who does not have an interest or the sole interest in the recreational vessel in relation to which the application in the notice is to be made— must, as soon as is reasonably practicable, take reasonable steps to serve a copy of the notice on any person who he or she is aware has an interest in the recreational vessel. (3) A notice under subsection (1) must specify the recreational vessel in respect of which an order is to be sought. (4) A notice served under subsection (1) must state— (a) that if the operator is found guilty of a relevant offence, an application for an impoundment or immobilisation order or a forfeiture order will be made by the Chief Commissioner of Police in respect of the recreational vessel specified in the notice; and (b) the identification mark of the recreational vessel; and (c) that a person named in the notice may appear before the relevant court at the hearing of the application and show cause why the order should not be made; and (d) that the person on whom the notice is served must not sell or otherwise dispose of his or her interest in the relevant recreational vessel without the approval of the relevant court. s. 5 -- 37 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 30 62U Interest in recreational vessel not to be transferred (1) A person on whom a notice is served under section 62T(1) must not, before the application referred to in the notice is made and determined, or if an impoundment or immobilisation order or a forfeiture order is made, before the recreational vessel is seized under this Part, without the approval of the relevant court, sell or otherwise dispose of any interest in the recreational vessel that is the subject of the notice. Penalty: 60 penalty units. (2) Subsection (1) ceases to apply if— (a) the operator is found not guilty of the relevant offence for which the application is made; or (b) the Chief Commissioner of Police does not make the application referred to in the notice within 28 days after the operator is sentenced for a relevant offence; or (c) the charge for that relevant offence is withdrawn. 62V Notice in case of 2 or more charges (1) If an operator has been charged with 2 or more relevant offences, the Chief Commissioner of Police may, before the charges are heard or determined, serve a notice on— (a) the operator of the recreational vessel; and s. 5 -- 38 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 31 (b) the registered person of the recreational vessel in respect of which an order is to be sought, if he or she is not the person referred to in paragraph (a); and (c) the owner of the recreational vessel in respect of which an order is to be sought, if he or she is not the person referred to in paragraph (a) or (b); and (d) any person who the Chief Commissioner of Police is aware has an interest in the recreational vessel in respect of which an order is to be sought; and (e) the Director. (2) If a person notified under subsection (1)(a), (b) or (c) does not have an interest or the sole interest in the recreational vessel, he or she must, as soon as is reasonably practicable, take reasonable steps to serve a copy of the notice under subsection (1) on any person who he or she is aware has an interest in the recreational vessel. (3) A notice served under subsection (1) must— (a) specify the recreational vessel in respect of which an order is to be sought; and (b) state that the Chief Commissioner of Police intends to make an application under section 62S for an impoundment or immobilisation order or a forfeiture order in relation to the recreational vessel if the operator is convicted of more than one of the relevant offences in respect of which the operator has been charged; and s. 5 -- 39 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 32 (c) state that a person named in the notice may, if the Chief Commissioner makes the application, appear before the relevant court at the hearing of the application and show cause why the order should not be made; and (d) state that the person on whom the notice is served must not sell or otherwise dispose of his or her interest in the recreational vessel without the approval of the relevant court. (4) A person on whom a notice is served under subsection (1) must not, without the approval of the relevant court, before the application referred to in the notice is made and determined or, if an impoundment or immobilisation order or a forfeiture order is made, before the recreational vessel is seized under this Part, sell or otherwise dispose of any interest in the recreational vessel that is the subject of the notice. Penalty: 60 penalty units. (5) Subsection (4) ceases to apply if— (a) the operator is found not guilty of one or more relevant offences which results in the operator being subject to only one remaining charge for a relevant offence; or (b) the Chief Commissioner of Police does not make the application referred to in the notice within 28 days after the operator is sentenced for the second or third relevant offence; or s. 5 -- 40 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 33 (c) the charges for one or more of the relevant offences specified in the notice are withdrawn which results in the operator being subject to only one remaining charge for a relevant offence. 62W Direction not to transfer registration or register recreational vessel (1) Within 7 days after service of a notice under section 62T(1) or 62V(1), the Chief Commissioner of Police must direct the Director— (a) not to transfer the registration of the recreational vessel that is the subject of the notice from the registered person to another person; or (b) not to register (other than by way of renewal) the recreational vessel that is the subject of the notice, unless the recreational vessel is to be registered in the name of the person who was the most recent registered person of that recreational vessel— until the Chief Commissioner notifies the Director that the direction has ceased in accordance with subsection (3). (2) Subsection (1) applies whether or not an actual application for transfer of registration or registration has been made. (3) The Chief Commissioner of Police must notify the Director that the direction not to transfer registration or register under subsection (1) has ceased when any of the following occurs— s. 5 -- 41 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 34 (a) if a notice is served under section 62T(1)— (i) the operator is found not guilty of the relevant offence for which the application specified in the notice is made; (ii) the Chief Commissioner of Police does not make the application referred to in the notice within 28 days after the operator is sentenced for a relevant offence; (iii) the charge for the relevant offence specified in the notice is withdrawn and no other charge- sheet is filed charging for any other relevant offence arising out of the same single set of circumstances; (b) if a notice is served under section 62V(1)— (i) the operator is found not guilty of one or more relevant offences which results in the operator being subject to only one remaining charge for a relevant offence; (ii) the Chief Commissioner of Police does not make the application referred to in the notice within 28 days after the operator is sentenced for the second or third relevant offence; (iii) the charges for one or more of the relevant offences specified in the notice are withdrawn which results in the operator being s. 5 -- 42 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 35 subject to only one remaining charge for a relevant offence; (c) the court hearing the application declines to make an impoundment or immobilisation order or a forfeiture order; (d) the court sets aside an impoundment or immobilisation order or a forfeiture order under section 62ZA; (e) an impoundment or immobilisation order or a forfeiture order is quashed, set aside on appeal or, as a result of a conviction for a relevant offence being set aside on appeal, the order ceases to have effect; (f) the period of impoundment or immobilisation specified in an impoundment or immobilisation order ends; (g) a forfeiture order becomes effective and a member of the police force or an authorised person takes possession of the recreational vessel that is the subject of the forfeiture order. Note Section 62ZB sets out when an order takes effect. 62X Director not to transfer registration or register recreational vessel (1) If directed by the Chief Commissioner of Police under section 62W, and until notified by the Chief Commissioner under that section that the direction has ceased, the Director must not— (a) transfer the registration of the recreational vessel that is the subject of s. 5 -- 43 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 36 a notice served under section 62T(1) or 62V(1) from the registered person to another person; or (b) register (other than by way of renewal) the recreational vessel that is the subject of a notice served under section 62T(1) or 62V(1), unless the recreational vessel is to be registered in the name of the person who was the most recent registered person of that recreational vessel. (2) If the Chief Commissioner of Police gives a direction under section 62W(1) in respect of a recreational vessel, the Director must send to the registered person a notice advising that no transfer of registration will occur in relation to that recreational vessel until the Chief Commissioner gives notification under section 62W(3). 62Y Cessation of direction under this Act does not affect any suspension The cessation of a direction not to transfer the registration of, or register, a recreational vessel under this Part does not affect the suspension of that registration under any other Act or law. 62Z Hearing of application (1) The relevant court hearing an application for an impoundment or immobilisation order or a forfeiture order— (a) must allow any person served with a notice under section 62T(1) or 62V(1) to be heard at the hearing of the application and to show cause why an impoundment or immobilisation order s. 5 -- 44 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 37 or a forfeiture order should not be made; and (b) may allow any other person to be heard if the court is satisfied that an impoundment or immobilisation order or a forfeiture order may substantially affect that person's interests. (2) The court must not make an impoundment or immobilisation order or a forfeiture order if the owner or registered person of the recreational vessel that was used in the commission of the relevant offence can prove to the court's satisfaction that the relevant offence was committed without the knowledge or consent of the owner or registered person. (3) The court may decline to make an impoundment or immobilisation order or a forfeiture order if the court is satisfied that such an order would cause exceptional hardship to any person. (4) If the court makes an impoundment or immobilisation order, the Chief Commissioner of Police must notify the operator and the owner or registered person that if the recreational vessel is not collected or released within two months after the recreational vessel was impounded or immobilised the Chief Commissioner of Police may sell or otherwise dispose of the recreational vessel and any item or thing left in or on the recreational vessel. Note Section 62ZQ provides that the Chief Commissioner of Police must give 14 days notice of any intention to sell or dispose of a recreational vessel or item or thing left in or on the recreational vessel. s. 5 -- 45 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 38 62ZA Application for variation of order (1) A person whose interests are substantially affected by an impoundment or immobilisation order or a forfeiture order may apply to the court that made the order for variation of the order if the applicant can demonstrate— (a) that since the impoundment or immobilisation order or forfeiture order was made the applicant's circumstances have changed; and (b) that the impoundment or immobilisation order or forfeiture order is causing, or will cause, exceptional hardship to the applicant or any other person. (2) An application under subsection (1) to vary an impoundment or immobilisation order may be made at any time while the recreational vessel is impounded or immobilised. (3) An application under subsection (1) to vary a forfeiture order may be made at any time while the recreational vessel is vested in the Crown. (4) The court may make an order varying an impoundment or immobilisation order or a forfeiture order in any way, including, but not limited to— (a) setting aside the impoundment or immobilisation order or forfeiture order; or (b) reducing the amount of time that the recreational vessel is subject to impoundment or immobilisation. s. 5 -- 46 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 39 62ZB When order takes effect (1) An impoundment or immobilisation order or a forfeiture order becomes effective on— (a) the expiration of the appeal period for the operator's conviction of the relevant offence; or (b) the expiration of the appeal period for a sentencing order or sentence made following that conviction— whichever is the later. (2) If a conviction for a relevant offence is set aside on appeal, an impoundment or immobilisation order or a forfeiture order is of no effect. (3) If a person convicted of a relevant offence applied for leave to appeal against the conviction for the relevant offence or the making of an impoundment or immobilisation order or a forfeiture order after the end of the relevant appeal period and such leave is granted, the appeal operates as a stay of the impoundment or immobilisation order or forfeiture order and any recreational vessel impounded or immobilised or otherwise in the possession of the Crown must be released to the owner or registered person. (4) If a recreational vessel subject to a forfeiture order is no longer in the possession of the Crown and the conviction for the relevant offence, or the forfeiture order, is set aside on appeal, the Crown must pay to the appellant and any other person with an interest in the recreational vessel an amount commensurate with the value of the s. 5 -- 47 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 40 appellant's or other person's interest in the recreational vessel. (5) Any amount to be paid under subsection (4) is to be paid out of the proceeds (if any) of the sale of the recreational vessel. (6) A person with an interest in the recreational vessel may make an application to the Magistrates' Court for an order that compensation be paid in accordance with subsection (4) and the Court may make either or both of the following orders— (a) an order that compensation be paid to that person commensurate with the value of the person's interest in the recreational vessel; (b) an order that the costs incurred by the Crown in executing the forfeiture order may be retained by the Crown out of the proceeds of the sale of the recreational vessel. 62ZC Police powers A member of the police force acting under an impoundment or immobilisation order or a forfeiture order made under this Part has, and may exercise the same powers to seize the recreational vessel and impound or immobilise it as are specified in sections 62E(1) and (3) and 62G. 62ZD Liability for costs of impoundment or immobilisation If a court makes an impoundment or immobilisation order, the recreational vessel must not be released from impoundment or immobilisation until the designated costs are paid by the person seeking to collect or release the recreational vessel. s. 5 -- 48 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 41 62ZE Ownership rights If a person is not the registered person of a recreational vessel, but can prove ownership of the recreational vessel to a court exercising powers under this Part, that person may make any application or exercise any right that a registered person may make or exercise under this Part. 62ZF Third party protection from forfeiture order (1) A person, other than the operator, who did not appear at the hearing of an application for a forfeiture order and has an interest in the recreational vessel subject to a forfeiture order may apply to the court that made the forfeiture order for an order that— (a) if ownership of the recreational vessel is vested in the Crown— (i) ownership of the recreational vessel be transferred to the applicant, if the applicant had, immediately before the forfeiture order was made, full ownership of the recreational vessel; or (ii) if the applicant had part ownership of the recreational vessel immediately before the forfeiture order was made, the recreational vessel be sold and the Crown pay to the applicant and any other person with an interest in the recreational vessel an amount commensurate with the value of his or her interest in the recreational vessel; or s. 5 -- 49 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 42 (b) if the recreational vessel has been sold or otherwise disposed of, the Crown pay to the applicant an amount commensurate with the value of the applicant's interest in the recreational vessel. (2) Leave of the court that made the forfeiture order is required to bring an application under subsection (1) if— (a) the person was served with a notice of the application for a forfeiture order under section 62T(1) or 62V(1); or (b) six months or more have elapsed since the date the forfeiture order was made. (3) The court may only grant leave under subsection (2)(b) if it is satisfied that the delay in making the application was not due to the applicant's neglect. (4) On an application under subsection (1), the court may make an order— (a) declaring the nature, extent and, if necessary for the order, the value (at the time the declaration is made) of the applicant's interest in the recreational vessel immediately before the forfeiture order was made; and (b) directing the Crown— (i) if the recreational vessel is vested in the Crown and the applicant had full ownership of the recreational vessel immediately before the forfeiture order was made, to transfer ownership of the recreational vessel to the applicant; or s. 5 -- 50 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 43 (ii) if the recreational vessel is no longer vested in the Crown, or if the applicant did not have full ownership of the recreational vessel immediately before the forfeiture order was made, to pay to the applicant the value of the applicant's interest in the recreational vessel. (5) The court may only make an order under subsection (4) if it is satisfied that— (a) the applicant would have, apart from the forfeiture order, a relevant interest in the recreational vessel; and (b) the relevant offence occurred without the knowledge or consent of the applicant. (6) Any amount to be paid under this section is to be paid out of the proceeds (if any) of the sale of the recreational vessel. Division 4—Search and seizure warrants 62ZG Application for search and seizure warrant (1) A member of the police force may apply to a magistrate for a search and seizure warrant to be issued under this Division in respect of a recreational vessel if— (a) the recreational vessel is subject to an impoundment or immobilisation order and has not been surrendered to a member of the police force; or s. 5 -- 51 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 44 (b) the recreational vessel is subject to a forfeiture order and has not been surrendered to a member of the police force; or (c) in accordance with section 62D, a member of the police force believes on reasonable grounds that the recreational vessel has been used in the commission of a relevant offence and the application is made within 48 hours after the alleged commission of the relevant offence; or (d) a member of the police force is empowered under section 62F(6) to seize the recreational vessel. (2) An application under this section may only be made if the applicant believes on reasonable grounds that the recreational vessel is, or may be within the next 72 hours, in or at a specified premises or place, including, but not limited to, a landing place. (3) An application for a search and seizure warrant must be made in writing. (4) A magistrate must not issue a search and seizure warrant unless— (a) the application for the warrant sets out the grounds on which the warrant is sought; and (b) the applicant has given the magistrate, either orally or in writing, any further information that the magistrate requires concerning the grounds on which the warrant is sought; and (c) the information given by the applicant is verified before the magistrate on oath or affirmation or by affidavit. s. 5 -- 52 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 45 62ZH Search and seizure warrant (1) A magistrate to whom an application is made under section 62ZG, if satisfied that there are reasonable grounds for believing the matters set out in the application, may issue a warrant to the person or persons named in the warrant to enter the specified premises or place and search for and seize the recreational vessel specified in the warrant. (2) A warrant issued under subsection (1) may authorise the person or persons named in the warrant to— (a) enter the premises or place specified in the warrant; and (b) search for the recreational vessel specified in the warrant; and (c) use reasonable force to break into or open any structure on or at the premises or place specified in the warrant that may store the recreational vessel specified in the warrant; and (d) seize and impound or immobilise the recreational vessel specified in the warrant, using any or all of the powers specified in sections 62E(3) and 62G. (3) A warrant issued under subsection (1) must— (a) state the purpose for which the warrant is issued; and (b) give a description of the recreational vessel authorised for seizure; and (c) give the address or other description of the premises or place in respect of which the warrant is issued. s. 5 -- 53 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 46 (4) Every warrant issued under this section must be in the prescribed form. 62ZI Record of proceedings for search and seizure warrant (1) A magistrate who issues a search and seizure warrant must cause a record to be made of all relevant particulars of the grounds he or she has relied on to justify the issue of the warrant. (2) The magistrate may decline to record any matter that might disclose the identity of a person if the magistrate believes on reasonable grounds that to do so might jeopardise the safety of any person. 62ZJ Announcement before entry On executing a search and seizure warrant, the person executing the warrant must— (a) announce that he or she is authorised by the warrant to enter the premises or place; and (b) give any person at the premises or place an opportunity to allow entry to the premises or place before force is used to enter the premises or place. 62ZK Copy of search and seizure warrant to be given to occupier A person executing a search and seizure warrant must— (a) if the occupier is present at the premises or place where the warrant is being executed, identify himself or herself to the occupier and give the occupier a copy of the warrant; or s. 5 -- 54 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 47 (b) if the occupier is not present at the premises or place where the warrant is being executed, identify himself or herself to any other person at the premises or place and give that person a copy of the warrant. 62ZL Use of assistants to execute search and seizure warrant A person executing a search and seizure warrant may do so with the aid of any assistants that the person considers reasonably necessary to achieve the purpose for which the warrant was issued. 62ZM Application of Magistrates' Court Act 1989 Except to the extent that a contrary intention appears in this Division, the provisions to be observed with respect to search warrants in the Magistrates' Court Act 1989 extend and apply to search and seizure warrants under this Division. 62ZN Expiry of search and seizure warrant (1) A search and seizure warrant ceases to have effect if it is recalled and cancelled by the magistrate who issued it. (2) If subsection (1) does not apply, a search and seizure warrant ceases to have effect— (a) at the end of the period of one month after its issue; or (b) when it is executed— whichever occurs first. s. 5 -- 55 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 48 62ZO Report on execution of search and seizure warrant (1) The person to whom a search and seizure warrant is issued must give a report to the registrar of the Magistrates' Court— (a) stating whether or not the warrant was executed; and (b) if the warrant was executed, setting out briefly the result of the execution of the warrant; and (c) if the warrant was not executed, setting out briefly the reasons why the warrant was not executed; and (d) stating whether or not a copy of the warrant was given to the occupier or another person at the premises or place. (2) A report must be— (a) in the prescribed form; and (b) made within 10 days after the expiry of the warrant. (3) A person may apply to the Magistrates' Court for an order authorising the person to inspect the report given under subsection (1) if the person satisfies the Court that the person is— (a) the owner or occupier of premises or place on which the warrant was executed; or (b) a person who has an interest in the recreational vessel seized in the execution of the warrant. s. 5 -- 56 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 49 62ZP Obstruction or hindrance of person executing search and seizure warrant A person must not, without reasonable excuse, obstruct or hinder a person executing a search and seizure warrant. Penalty: 60 penalty units. Division 5—Disposal of recreational vessels Subdivision 1—Disposal of recreational vessels, items and things 62ZQ Sale or disposal of uncollected recreational vessels and items (1) Subject to subsection (2), the Chief Commissioner of Police may sell, by public auction or tender, or otherwise dispose of, a recreational vessel and any item or thing left in or on the recreational vessel, if— (a) a decision is made by a member of the police force to impound or immobilise a recreational vessel under section 62D or an impoundment or immobilisation order is made against that recreational vessel; and (b) the recreational vessel is not collected or released 2 months or more after the date on which the recreational vessel first became available for collection or release. (2) The Chief Commissioner of Police must not sell or otherwise dispose of a recreational vessel or an item or thing left in or on a recreational vessel under subsection (1) unless— s. 5 -- 57 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 50 (a) the matters referred to in subsection (3) are satisfied; or (b) a disposal order has been made for the recreational vessel. (3) For the purposes of subsection (2)(a), the matters that must be satisfied before the Chief Commissioner may sell or otherwise dispose of the recreational vessel or item or thing are— (a) all proceedings in relation to the relevant offence that led to the impoundment or immobilisation of the recreational vessel have been finalised and any appeal period has expired; and (b) at least 14 days before attempting to sell or otherwise dispose of the recreational vessel, item or thing, the Chief Commissioner serves notice on the operator, owner and registered person of the recreational vessel that the Chief Commissioner intends to sell or otherwise dispose of the recreational vessel, item or thing unless steps are taken to collect or release the recreational vessel, item or thing; and (c) at least 14 days before attempting to sell or otherwise dispose of the recreational vessel, item or thing, the Chief Commissioner, by publishing a notice in a newspaper circulating generally in the State, notifies the public that the Chief Commissioner intends to sell or otherwise dispose of the recreational vessel and any item or thing left in or on the recreational vessel; and s. 5 -- 58 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 51 (d) if the Chief Commissioner intends to sell or otherwise dispose of an item or thing left in or on the recreational vessel, all reasonable efforts have been made to return the item or thing to the person who has ownership in that item or thing. Subdivision 2—Disposal of recreational vessels, items or things if forfeiture order has taken effect 62ZR Sale or disposal of recreational vessel subject to forfeiture order (1) The Chief Commissioner of Police may sell, by public auction or tender, or otherwise dispose of a recreational vessel that is the subject of a forfeiture order, and any uncollected item or thing left in or on the recreational vessel, once the forfeiture order takes effect in accordance with section 62ZB(1). (2) The Chief Commissioner of Police must not sell or dispose of an item or thing left in or on a recreational vessel that is the subject of a forfeiture order unless all reasonable efforts have been made to return the item or thing to the person who has ownership of that item or thing. 62ZS Application of proceeds of sale Where a recreational vessel or item or thing is sold under section 62ZQ or 62ZR the proceeds of sale are to be applied in the following order of priority— (a) to pay the costs of the sale; (b) to pay any costs of impoundment or immobilisation; s. 5 -- 59 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 52 (c) to discharge any security interest over the recreational vessel, such as a bank loan or a lease arrangement; (d) to pay the owner or registered person of the recreational vessel if the recreational vessel was uncollected, or if the owner or registered person cannot be reasonably located, for payment into the Consolidated Fund; (e) for payment into the Consolidated Fund. Subdivision 3—Disposal of recreational vessels, items or things subject to disposal order 62ZT Disposal of recreational vessel, item or thing subject to disposal order (1) The Chief Commissioner of Police may sell, by public auction or tender, or otherwise dispose of, a recreational vessel that is the subject of a disposal order and any item or thing left in or on the recreational vessel. (2) The Chief Commissioner must not sell or dispose of an item or thing left in or on a recreational vessel that is the subject of a disposal order unless all reasonable efforts have been made to return the item or thing to the person who has ownership of that item or thing. 62ZU Notice to be given of intention to apply for disposal order (1) The Chief Commissioner of Police may give notice of an application for a disposal order for a recreational vessel if— s. 5 -- 60 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 53 (a) a decision is made by a member of the police force to impound or immobilise the recreational vessel under section 62D or an impoundment or immobilisation order is made against the recreational vessel; and (b) the relevant court adjourns proceedings in relation to a relevant offence, other than to a fixed date, because the accused fails to appear; and (c) a warrant is issued for the arrest of the accused; and (d) the recreational vessel has not been collected, and the designated costs are not paid, within 2 months after the day the proceedings are adjourned. (2) At least 28 days before making an application under subsection (1) the Chief Commissioner of Police must— (a) serve notice of the intention to make the application on— (i) the operator of the recreational vessel; and (ii) if the operator of the recreational vessel is not the registered person of the recreational vessel, the registered person; and (iii) if the owner of the recreational vessel is not a person referred to in subparagraph (i) or (ii), the owner; and s. 5 -- 61 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 54 (iv) any person who the Chief Commissioner is aware has an interest in the recreational vessel; and (v) the Director; and (b) publish a notice in a newspaper circulating generally in the State, of the Chief Commissioner's intention to make the application. (3) A notice under subsection (2) must state— (a) that the Chief Commissioner intends to apply for an order to dispose of the recreational vessel unless the recreational vessel is collected and the designated costs paid within 28 days of the date the notice is served; and (b) information that identifies the recreational vessel, including the recreational vessel's identification mark (if applicable); and (c) that a person named in the notice may appear before the relevant court at the hearing of the application and show cause why the order should not be made; and (d) any person on whom the notice is served must not sell or otherwise dispose of the person's interest in the recreational vessel without the approval of the relevant court. s. 5 -- 62 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 55 62ZV Application for disposal order The Chief Commissioner of Police may apply to the court for an order to dispose of a recreational vessel if— (a) the Chief Commissioner has served notice in respect of the recreational vessel in accordance with section 62ZU(2)(a); and (b) within 28 days after the date the notice is served, the recreational vessel is not collected or the designated costs have not been paid. 62ZW Hearing of application for and making of disposal order (1) The relevant court hearing an application for a disposal order— (a) must allow a person served with a notice under section 62ZU to be heard at the hearing of the application and to show cause why the disposal order should not be made; and (b) may allow any other person to be heard if the court is satisfied the disposal order may substantially affect the person's interests. (2) After hearing the application, the court may— (a) make the disposal order; or (b) decline to make the disposal order if the court is satisfied the order would cause exceptional hardship to a person. s. 5 -- 63 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 56 (3) If the court makes the disposal order, the Crown becomes the owner of the recreational vessel. 62ZX Application of proceeds of sale (1) If a recreational vessel, item or thing is sold under a disposal order, the proceeds of the sale are to be applied in the following order of priority— (a) to pay the costs of the disposal; (b) to pay any costs of impoundment or immobilisation; (c) to discharge any security interest over the recreational vessel, including a bank loan or lease arrangement. (2) Any sum remaining after the proceeds of the sale are applied in accordance with subsection (1) is taken to be unclaimed money under the Unclaimed Money Act 2008 as if it were a sum of money legally payable to the person who had ownership of the recreational vessel immediately before the disposal order was made and as if the sum has remained unpaid for more than 12 months. Division 6—Miscellaneous 62ZY Service of notices under Part 7A If under this Part a notice is required or permitted to be served on any person, the notice may, unless the contrary intention appears, be served— s. 5 -- 64 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 57 (a) by delivering it personally to the person; or (b) by leaving it at the usual or last known place of residence or business of the person with a person apparently over the age of 16 years and apparently residing at that place or (in the case of a business) apparently in charge of or employed at that place; or (c) by sending it by post addressed to the person at the usual or last known place of residence or business of that person; or (d) if the person has given to the Director as his or her address an address that is not his or her place of residence or business, by sending it addressed to the person at that address. __________________". 6 Exclusion orders After section 85AT(2)(b) of the Marine Act 1988 insert— "(ba) being a director, secretary or officer concerned in the management of a body corporate involved in managing infrastructure relating to the operation, storage, mooring, berthing or placement of vessels within the State; or". s. 5 -- 65 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 58 7 Insertion of new section 85ATA After section 85AT of the Marine Act 1988 insert— "85ATA Corporations displacement provision Section 85AT is declared to be a Corporations legislation displacement provision for the purposes of section 5G of the Corporations Act in relation to the provisions of Chapter 2D of that Act. Note Section 5G of the Corporations Act provides that if a State law declares a provision of a State law to be a Corporations legislation displacement provision, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not apply to the extent necessary to avoid the inconsistency.". 8 New Part 10AA inserted After Part 10 of the Marine Act 1988 insert— "PART 10AA—PROHIBITION OF USE OF RECREATIONAL VESSELS AND HIRE AND DRIVE VESSELS Division 1—Preliminary 112A Part 10AA definitions In this Part— authorised officer means a person appointed as an authorised officer for the purposes of this Part by the Director; embargo notice means a notice under section 112D; s. 7 -- 66 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 59 landing place includes— (a) an intersection between land and water at which it is reasonably safe to land a vessel; (b) a place intended for the landing or berthing of vessels, including, but not limited to, a wharf, boat ramp, marina, pier or jetty; operator, in relation to a vessel, means the person who is operating (within the meaning of Part 10A) the vessel; prohibition direction means a direction to a person under section 112E; registered person, in relation to a vessel, means the person who is registered as the owner or operator of the vessel in accordance with regulations made under this Act; relevant offence means an offence against section 22. 112B Part does not affect other penalties The issue of an embargo notice under this Part arising out of the commission of a relevant offence is in addition to, and does not limit or otherwise affect, any penalty that may be imposed on the person for the relevant offence other than under this Part. 112C Part has prospective application This Part applies only to offences committed on or after the commencement of section 8 of the Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009. s. 8 -- 67 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 60 Division 2—Embargo notices and prohibition directions 112D Power to issue embargo notices (1) If a member of the police force or an authorised officer believes on reasonable grounds that a recreational vessel is being or has been used in the commission of a relevant offence, he or she may, as soon as practicable after the commission of the relevant offence, issue a notice in the form approved by the Director specifying a period not exceeding 48 hours during which the recreational vessel may not be operated by any person. (2) A notice under subsection (1) may be served— (a) by causing a copy of the notice to be given to— (i) the operator of the recreational vessel; and (ii) the registered person of the recreational vessel, if he or she is not the person referred to in paragraph (a); and (iii) the owner of the recreational vessel, if he or she is not the person referred to in paragraph (a) or (b); or (b) by causing a copy of the notice to be affixed to the recreational vessel in a prominent position. s. 8 -- 68 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 61 (3) A notice issued under subsection (1) must specify— (a) the period during which the recreational vessel may not be operated; and (b) that it is an offence to operate, or permit the operation of, a recreational vessel in breach of a notice issued under subsection (1); and (c) if a copy of the notice has been affixed to the recreational vessel, where and how the notice can be removed from the recreational vessel; and (d) any other prescribed matter. (4) A person must not operate, or permit the operation of, a recreational vessel in contravention of a notice issued under subsection (1) in respect of that recreational vessel. Penalty: 10 penalty units. (5) It is a defence to a charge under subsection (4) for the person charged to prove that— (a) he or she did not know; and (b) it was not reasonable for him or her to know— that a notice under subsection (1) was issued in respect of the recreational vessel. (6) A person must not remove a copy of a notice affixed to a recreational vessel under this section. Penalty: 10 penalty units. s. 8 -- 69 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 62 (7) Subsection (6) does not apply to a member of the police force or an authorised officer who is acting in the course of his or her duties. (8) If a member of the police force or an authorised officer has issued and served a notice under subsection (1) in respect of a vessel for a particular relevant offence— (a) the power to issue a notice under subsection (1) in respect of that vessel for that particular relevant offence must not be exercised again; and (b) a prohibition direction must not be issued to the operator of the vessel at the time of the particular relevant offence in respect of that offence; and (c) the vessel must not be seized, impounded or immobilised under Part 7A for that particular relevant offence. 112E Police power to prohibit operation of vessels (1) If a member of the police force or an authorised officer believes on reasonable grounds that a recreational vessel or a hire and drive vessel is being or has been used in the commission of a relevant offence, he or she may— (a) direct the operator of the vessel at the time the relevant offence was committed not to operate any vessel for a specified period not exceeding 24 hours beginning at the time of the direction; (b) direct the operator of the vessel at the time the relevant offence was s. 8 -- 70 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 63 committed to move the vessel to the landing place that is nearest to the vessel at the time when the direction is made. (2) A person must not contravene the direction of a member of the police force or an authorised officer under subsection (1)(a). Penalty: 10 penalty units. (3) A person must not fail to comply with the direction of a member of the police force or an authorised officer under subsection (1)(b). Penalty: 5 penalty units. (4) If a member of the police force or an authorised officer has given a direction under subsection (1) to a person who was the operator of a vessel at the time of a particular relevant offence— (a) the power to give a direction under subsection (1) to that person for that particular relevant offence may not be exercised again; and (b) an embargo notice must not be issued for that particular relevant offence; and (c) a vessel must not be seized, impounded or immobilised under Part 7A for that particular relevant offence. Division 3—Authorised officers 112F Appointment (1) The Director, by instrument, may appoint an officer or employee of a port management body, a local port manager or a waterway manager as an authorised officer for the purposes of this Part. s. 8 -- 71 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 64 (2) When appointing a person under this section the Director must appoint a person who is suitably qualified or trained to be an authorised officer. (3) An appointment under this section is for the term, and subject to the conditions, specified in the instrument of appointment. (4) Without limiting the conditions to which an appointment under this section may be subject, an appointment may be subject to one or more of the following conditions— (a) that the person appointed may only exercise the functions and powers specified in the instrument of appointment; (b) that the functions and powers that the person may exercise under the appointment are subject to the conditions specified in the instrument of appointment. 112G Identity cards (1) The Director must issue an identity card to an authorised officer. (2) An identity card must— (a) contain the name of the authorised officer to whom it is issued; and (b) identify the authorised officer to whom it is issued as an authorised officer; and (c) contain a photograph of the authorised officer. s. 8 -- 72 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 65 112H Return of identity cards If a person to whom an identity card has been issued ceases to be an authorised officer, the person must return the identity card to the Director as soon as practicable. Penalty: 5 penalty units. 112I Production of identity card (1) An authorised officer must produce his or her identity card for inspection— (a) before exercising a power under this Part; or (b) if asked to do so by any person at any time during the exercise of a power under this Part. (2) However, an authorised officer need not produce his or her identity card when asked to do so if— (a) the authorised officer reasonably believes that the production of his or her identity card would— (i) affect the safety or welfare of any person; or (ii) frustrate the effective exercise of a power under this Part; or (b) the request to produce his or her identity card is made by a person to whom the officer has already produced that identity card on the same day before exercising a power under this Part. s. 8 -- 73 of 152 -- Part 2—Amendment of the Marine Act 1988 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 66 (3) Any action taken or thing done by an authorised officer under this Part is not invalidated by his or her failure to produce his or her identity card. __________________". 9 Subject matter for regulations (1) After item 44 in Schedule 5 to the Marine Act 1988 insert— "IMPOUNDMENT, IMMOBILISATION AND FORFEITURE OF RECREATIONAL VESSELS 44A. The manner and circumstances in which a recreational vessel may be immobilised. 44B. The matters that must be included in notices issued, given or served under Part 7A. 44C. Procedures and requirements to be complied with before a recreational vessel or an item or thing left in or on a recreational vessel may be recovered. 44D. The circumstances in which a motor vehicle is not eligible for an impoundment or immobilisation order or a forfeiture order under section 62Q or 62R.". (2) After item 81 of Schedule 5 to the Marine Act 1988 insert— "PROHIBITION OF USE OF RECREATIONAL VESSELS 81AA. The form of a notice issued under section 112D(1). 81AB. The matters that must be specified in a notice issued under section 112D(1).". __________________ s. 9 -- 74 of 152 -- Part 3—Amendment of the Port Services Act 1995 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 67 PART 3—AMENDMENT OF THE PORT SERVICES ACT 1995 10 Definitions In section 3(1) of the Port Services Act 1995, insert the following definitions— "abandoned thing means a thing to which Division 4 of Part 5B applies; hazardous port activity means any activity involving the following— (a) the transfer of dry or liquid cargoes to and from vessels or wharves; (b) hot works, being welding, thermal or oxygen cutting or heating or any other heat producing or spark producing activity; port safety officer, in relation to the port of Melbourne, means a person appointed under section 230L of the Transport Act 1983; Secretary means the Department Head, within the meaning of the Public Administration Act 2004, of the Department of Transport;". 11 New Part 4A inserted After Part 4 of the Port Services Act 1995 insert— "PART 4A—REGULATION OF TOWAGE SERVICES Division 1—Preliminary 73A Definitions In this Part— notified towage services provider means a person who has given a notification s. 10 See: Act No. 82/1995. Reprint No. 5 as at 31 July 2009. LawToday: www. legislation. vic.gov.au -- 75 of 152 -- Part 3—Amendment of the Port Services Act 1995 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 68 under section 73F that is in force under section 73H; towage conditions determination means a determination made in accordance with Division 4; towage requirements determination means a determination made in accordance with Division 2; towage service means the service of supplying one or more towage vessels to assist in the navigation of other vessels by towing or pushing those vessels into, within or out of port waters; towage vessel means a vessel designed or intended to be used to assist another vessel's navigation by towing or pushing that vessel. Division 2—Towage requirements 73B Towage requirements determination (1) The Port of Melbourne Corporation may make a determination as to— (a) the period of time for which its provisions operate (the determination period); and (b) the minimum number of towage vessels required to be provided by notified towage services providers during the determination period; and (c) the minimum capacity of any such vessels; and s. 11 -- 76 of 152 -- Part 3—Amendment of the Port Services Act 1995 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 69 (d) the minimum requirements necessary for such vessels to be fit to provide the service that the vessels are to be used to provide; and (e) the availability required for such vessels to provide the services. (2) The determination period determined under subsection (1)(a)— (a) must not commence until two months after the day on which the determination is published in the Government Gazette; and (b) must commence immediately on the termination of a previous determination period (other than in the case of the first determination made under this provision); and (c) must terminate at a time that ensures paragraphs (a) and (b) may be complied with. (3) In making a determination under subsection (1), the Port of Melbourne Corporation— (a) must have regard to— (i) the requirements that are necessary for the safe and efficient operation of the port of Melbourne for the determination period; and (ii) any submissions made under section 73D as to the proposed determination notified under section 73C; and (b) must not make a determination that has greater requirements as to the number, capacity and availability of vessels than those requirements set out in the s. 11 -- 77 of 152 -- Part 3—Amendment of the Port Services Act 1995 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 70 proposed determination notified under section 73C. (4) A determination under this section— (a) must be published in the Government Gazette; and (b) has effect from the date of publication; and (c) operates for the determination period. 73C Process for making a towage requirements determination (1) Before making a towage requirements determination the Port of Melbourne Corporation must publish notice of the proposal to make the determination in the Government Gazette. (2) A notice under subsection (1) must be published at least one month before the making of the determination. (3) A notice under subsection (1) must— (a) set out the proposed form and content of the determination; and (b) the fact that written submissions may be made on the proposed determination to the Corporation; and (c) the time within which the written submissions must be made under section 73E. 73D Entitlement to make submissions (1) Any person who is likely to be affected by a proposed determination notified under section 73C may make a written submission to the Port of Melbourne Corporation about the determination. s. 11 -- 78 of 152 -- Part 3—Amendment of the Port Services Act 1995 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 71 (2) A submission under subsection (1) must be made within the time specified in the notice published under section 73C. Division 3—Notification of towage service providers 73E Offence to provide towage services without notification (1) A person must not provide a towage service in the port of Melbourne unless the person is a notified towage services provider. Penalty: 60 penalty units. (2) For the purposes of subsection (1), the owner of a vessel that is being used to provide a towage service is taken to be the person providing the service, unless the owner has notified the Port of Melbourne Corporation that another person is providing the service. 73F Making notification (1) A person may notify the Port of Melbourne Corporation that that person is providing or intends to provide a towage service in the port of Melbourne. (2) A notification under subsection (1)— (a) must be in writing; and (b) must be in a form approved by the Port of Melbourne Corporation; and (c) must contain the information required by the Port of Melbourne Corporation. s. 11 -- 79 of 152 -- Part 3—Amendment of the Port Services Act 1995 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 72 73G Procedure for acknowledgment of notification Within 2 weeks of receiving a notification under section 73F the Port of Melbourne Corporation must acknowledge receipt of that notification by notice in writing. 73H Period for which notification remains in force A notification under section 73F remains in force from the time from which acknowledgement of the notification is given to the person who has given the notification until— (a) the Port of Melbourne Corporation believes, on reasonable grounds, that the person no longer provides a towage service in the port of Melbourne and so notifies the person in writing; or (b) the person who has given the notification notifies the Port of Melbourne Corporation in writing that the person no longer provides a towage service in the Port of Melbourne. 73I Record of towage service providers (1) The Port of Melbourne Corporation must keep and maintain a record of each notified towage services provider. (2) The record kept under subsection (1) must set out— (a) the name and address of each notified towage services provider; and (b) the date on which each notified towage service provider became such a notified towage service provider; and s. 11 -- 80 of 152 -- Part 3—Amendment of the Port Services Act 1995 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 73 (c) any other information that the Port of Melbourne Corporation determines should be included in the record. Division 4—Towage conditions 73J Determination of towage conditions (1) The Port of Melbourne Corporation may determine conditions that a notified towage services provider must comply with in the course of providing towage services in the port of Melbourne. (2) The conditions that the Port of Melbourne Corporation may determine under subsection (1) are conditions as to the following— (a) the minimum number of towage vessels the notified towage services provider is to supply over the period of time specified in the determination (the specified period); and (b) the minimum capacity of any such vessels; and (c) the minimum requirements necessary for such vessels to be fit to provide the services that the vessels are to be used to provide; and (d) the availability required for such vessels to provide the services. 73K Limitations on making towage conditions determinations (1) In making a towage conditions determination, the Port of Melbourne Corporation— s. 11 -- 81 of 152 -- Part 3—Amendment of the Port Services Act 1995 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 74 (a) must have regard to the towage requirements determination for the period in respect of which the towage conditions determination is to apply (relevant towage requirements determination); and (b) must not make a determination that has the effect of— (i) requiring the supply of a total minimum number of towage vessels for the port of Melbourne for the specified period that exceeds the total minimum number of towage vessels required by the relevant towage requirements determination for the port for that period; or (ii) requiring the supply of a total minimum number of towage vessels of a particular capacity for the port of Melbourne for the specified period that exceeds the total minimum number of towage vessels of that capacity required by the relevant towage requirements determination for the port for that period; and (c) must ensure that the specified period of the towage conditions determination is the same as or less than the determination period of the relevant towage requirements determination; and (d) must not make the determination until two months after the Port of Melbourne Corporation has made the relevant towage requirements determination. s. 11 -- 82 of 152 -- Part 3—Amendment of the Port Services Act 1995 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 75 (2) Any part of a towage conditions determination that has not been made in accordance with subsection (1) is of no effect. 73L Service and publication of determination (1) On making a towage conditions determination, the Port of Melbourne Corporation must serve a copy of the determination on the notified towage services provider to which the determination applies. (2) A towage conditions determination must be published in the Government Gazette within 5 days after the determination is served under subsection (1). 73M Coming into effect of towage conditions The conditions set out in a towage conditions determination— (a) come into effect on the later of— (i) the day on which the determination is served under section 73L(1); or (ii) the commencement of the determination period for the relevant towage requirements determination; and (b) cease to have effect if the determination is not published in accordance with section 73L(2). s. 11 -- 83 of 152 -- Part 3—Amendment of the Port Services Act 1995 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 76 73N Process for making towage conditions determination (1) The Port of Melbourne Corporation must not make a towage conditions determination unless the Corporation has first consulted with the Director of Marine Safety. (2) Before making a towage conditions determination, the Port of Melbourne Corporation must first obtain the approval of the Minister. (3) Before approving the making of a towage conditions determination, the Minister must obtain the approval of the Treasurer. 73O Compliance with determined towage condition (1) If a notified towage services provider has not complied with any condition in a towage conditions determination applying to the provision of towage services in the port of Melbourne by that services provider, within 2 months of the condition having been in effect, the Port of Melbourne Corporation may serve notice to that effect to the provider. (2) A notice under subsection (1)— (a) must set out the matters comprising the failure to comply; and (b) may specify that within two months of the date on which the notice is served on the provider, the provider must comply with the condition; and (c) if a specification is made under paragraph (b), must set out that it is an offence not to comply with the specification. s. 11 -- 84 of 152 -- Part 3—Amendment of the Port Services Act 1995 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 77 (3) A notified towage services provider must comply with any condition in a towage conditions determination, in respect of which a specification under section (2)(b) has been given to the provider, within two months of the date on which the notice under subsection (1) has been served on the provider. Penalty: 240 penalty units. Division 5—General matters 73P Review by VCAT A person to whom a towage conditions determination applies may apply to VCAT for a review of a decision by the Port of Melbourne Corporation to make the determination. 73Q Period for making application to VCAT An application for review under section 73P must be made within 28 days of the later of— (a) the day on which the decision is made; or (b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given. s. 11 -- 85 of 152 -- Part 3—Amendment of the Port Services Act 1995 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 78 73R Repeal of Part This Part is repealed on the third anniversary of the day of its commencement. __________________". 12 New Part 5B inserted After Part 5A of the Port Services Act 1995 insert— "PART 5B—POWERS AS TO CERTAIN HAZARDOUS OR POLLUTING ACTIVITIES OR THINGS Division 1—Preliminary 88I Definitions In this Part— clean up has the same meaning as in the Environment Protection Act 1970; pollute and polluted have the same meaning as in the Environment Protection Act 1970. Division 2—Pollution abatement 88J Pollution abatement Where— (a) pollutants have been or are being discharged on port of Melbourne land or into port of Melbourne waters; or (b) a condition of pollution is likely to arise on port of Melbourne land or in port of Melbourne waters; or s. 12 -- 86 of 152 -- Part 3—Amendment of the Port Services Act 1995 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 79 (c) any potentially hazardous substance appears to have been abandoned or dumped on port of Melbourne land or in port of Melbourne waters; or (d) any potentially hazardous substance is being handled in a manner which is likely to cause an environmental hazard on port of Melbourne land or in port of Melbourne waters— the Port of Melbourne Corporation may conduct a clean up or cause a clean up to be conducted as the Corporation considers necessary. 88K Recovery of costs of clean up (1) If the Port of Melbourne Corporation conducts a clean up under section 88J, the Corporation may recover any reasonable costs incurred by the Corporation in conducting the clean up from the person who caused the circumstances that gave rise to the need for the clean up to be conducted. (2) The costs that may be recovered under subsection (1) include labour, administrative and overhead costs, determined on such basis as the Corporation reasonably considers appropriate, incurred as a result of any action taken by the Corporation under subsection (1). (3) An amount payable under subsection (1) may be recovered in any court of competent jurisdiction as a debt due to the Port of Melbourne Corporation. s. 12 -- 87 of 152 -- Part 3—Amendment of the Port Services Act 1995 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 80 88L Relationship with the Environment Protection Act 1970 These provisions do not apply in any situation in which the Authority (within the meaning of the Environment Protection Act 1970) is conducting a clean up under that Act. Division 3—Hazardous port activities 88M Hazardous port activity notice (1) A person who proposes to carry out a hazardous port activity in port of Melbourne waters or on port of Melbourne land, must give notice to the Port of Melbourne Corporation before doing so. Penalty: 20 penalty units. (2) A notice under subsection (1) must be given in accordance with the regulations. 88N Hazardous port activity direction (1) If a port safety officer for the port of Melbourne is satisfied that a hazardous port activity is being carried out or is proposed to be carried out in port of Melbourne waters or on port of Melbourne land, the officer may give a direction in writing to the person who is carrying out or who proposes to carry out the activity. (2) A direction under subsection (1) may— (a) direct a person who is carrying out an activity to cease carrying out the activity; or (b) direct a person within a specified area of the port to leave the area; or s. 12 -- 88 of 152 -- Part 3—Amendment of the Port Services Act 1995 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 81 (c) direct a person in the port to leave the port. (3) A port safety officer for the port of Melbourne may, if it is reasonable to do so, give an oral direction about any matter on which a direction may be given under subsection (1) to any person who is carrying out or who proposes to carry out a hazardous port activity. 88O Offence not to comply with hazardous port activity direction A person who has been given a hazardous port activity direction under section 88N must comply with that direction, unless that person has a reasonable excuse for not doing so. Penalty: 60 penalty units. Division 4—Abandoned or unclaimed goods or things 88P Offence to leave things in port waters or on port land A person must not leave any thing unattended on port of Melbourne land or in port of Melbourne waters for more than one month without the permission of the Port of Melbourne Corporation. Penalty: 60 penalty units. 88Q Removal of things (1) Subject to subsection (2), the Port of Melbourne Corporation may move any thing or cause any thing to be moved from port of Melbourne waters or port of Melbourne land if— s. 12 -- 89 of 152 -- Part 3—Amendment of the Port Services Act 1995 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 82 (a) the thing has been left unattended on the waters or land for more than one month; and (b) the identity or location of the owner of the thing cannot be established or the Port of Melbourne Corporation reasonably believes that the owner of the property will not move the property. (2) The Port of Melbourne Corporation may immediately remove a thing from port of Melbourne waters or port of Melbourne land if— (a) the Corporation is of the opinion that the thing has been left unattended in the port waters or on the port land and— (i) is causing an impediment to the operations of the port; or (ii) is causing an environmental hazard to the port; or (iii) is a risk to the safety or security of the port or port operations; or (iv) is a danger to public health; and (b) the identity or location of the owner of the thing cannot be established or the Port of Melbourne Corporation reasonably believes that the owner of the property will not move the property. 88R Powers when moving things (1) In the case of a vehicle or vessel, a person acting in accordance with section 88Q(1) or (2) may enter the vehicle or vessel using, if necessary, reasonable force, for the purpose of conveniently or expeditiously moving the vehicle or vessel. s. 12 -- 90 of 152 -- Part 3—Amendment of the Port Services Act 1995 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 83 (2) The Port of Melbourne Corporation when moving a thing under section 88Q(1) or (2) must move it to a place that the Corporation reasonably believes is the nearest safe and convenient place. 88S Requirement to make enquiries as to owner of thing If the Port of Melbourne Corporation has moved a thing under section 88Q(1) or (2), the Corporation must make all reasonable enquiries to establish the identity or location of the owner of the property. 88T Disposal of thing (1) If, after reasonable enquiries, the Port of Melbourne Corporation is unable to establish the identity or location of the owner of a thing that has been moved under section 88Q(1) or (2), the Corporation may dispose of the thing either by gift, sale or destruction of the thing or by otherwise dealing with the thing. (2) The Port of Melbourne Corporation must not dispose of a thing under subsection (1) unless— (a) the Corporation has given notice about the disposal of the thing in a newspaper circulating generally in Victoria and on its website; and (b) 28 days have expired since the giving of the notice. (3) The requirements of subsection (2) do not apply to the disposal of a thing that is perishable. s. 12 -- 91 of 152 -- Part 3—Amendment of the Port Services Act 1995 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 84 (4) If the Port of Melbourne Corporation establishes the identity or location of the owner of a thing that has been moved under section 88Q(1) or (2), the Corporation must give the owner notice in writing that the Corporation intends to dispose of the thing. (5) If the Corporation gives notice in writing under subsection (4) to the owner and the owner of the thing does not recover the thing from the Corporation within 28 days the Corporation may dispose of the thing after the 28 days have expired, either by gift, sale or destruction of the thing or by otherwise dealing with the thing. (6) The requirements of subsection (5) do not apply to the disposal of a thing that is perishable. 88U Recovery of costs (1) If the Port of Melbourne Corporation has moved a thing under section 88Q(1) or (2), the Corporation may recover from the owner— (a) the costs of the moving of the thing; and (b) the costs of storing the thing; and (c) if the thing has been disposed of, the costs of the disposal of the thing. (2) An amount payable under subsection (1) may be recovered in any court of competent jurisdiction as a debt due to the Corporation. (3) If the thing is disposed of, an amount that may be recovered under subsection (1) is to be paid out of the proceeds (if any) of the disposal. s. 12 -- 92 of 152 -- Part 3—Amendment of the Port Services Act 1995 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 85 88V Payment of compensation (1) If the owner of a thing is unable to recover possession of the thing because the thing has been disposed of under this Division, the Port of Melbourne Corporation must pay to the owner and any other person with an interest in the thing an amount commensurate with the value of the person's interest in the thing less any amount payable under section 88U. (2) An amount payable under subsection (1) is to be paid out of the proceeds (if any) of the disposal of the thing. (3) A person with an interest in a thing that has been disposed of under this Division may make an application to the Magistrates' Court for an order that compensation be paid in accordance with subsection (2) and the Court may make either or both of the following orders, where appropriate— (a) an order that compensation be paid to that person commensurate with the value of the person's interest in the thing; (b) an order that the costs incurred by the Corporation in moving or disposing of the thing under this Division may be retained by the Corporation out of the proceeds of the sale of the thing. (4) An application under subsection (3) must be made within 12 months of the date of the disposal of the thing. s. 12 -- 93 of 152 -- Part 3—Amendment of the Port Services Act 1995 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 86 88W Proceeds of disposal where owner not located If a thing has been disposed of under section 88T(1) where neither the identity nor the location of the owner has been established— (a) the Port of Melbourne Corporation may recover the costs of moving and disposal of the thing from the proceeds of that disposal; and (b) if no claim has been made under section 88V within 12 months of the disposal of the thing, any proceeds from the disposal of the thing, after the recovery of any costs under paragraph (a), must be paid into the Consolidated Fund. __________________". 13 Insertion of section after section 96 After section 96 of the Port Services Act 1995 insert— "97 Power to prosecute Proceedings for an offence against Part 4A or Part 5B or regulations made under section 98(1)(ca), (cb), (cc) or (cd) may be brought by any person authorised in writing either generally or in a particular case by the Port of Melbourne Corporation.". 14 Regulation making powers In section 98(1) of the Port Services Act 1995— (a) after paragraph (c) insert— "(ca) prohibition or regulation of the transfer to and from vessels of liquids or bulk cargo, including but not limited to— s. 13 -- 94 of 152 -- Part 3—Amendment of the Port Services Act 1995 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 87 (i) notification of any such transfers; (ii) authorisation of the carrying out of any such transfers; (iii) conditions to which such authorisations are subject and any other matters for or with respect to such authorisations; (iv) recovery of costs associated with the regulation of the carrying out of such transfers and of any action required to be taken in relation to the carrying out of such transfers; (v) forms and notices relating to such transfers; (cb) the carrying out on port land or on vessels in port waters or elsewhere in port waters of hazardous port activities, including but not limited to— (i) notification of any such hazardous port activities; (ii) authorisation of the carrying out of any such hazardous port activities; (iii) conditions to which such authorisations are subject and any other matters for or with respect to such authorisations; (iv) recovery of costs associated with the regulation of the carrying out of such hazardous port activities and of any action required to be taken in relation to the carrying out of such hazardous port activities; s. 14 -- 95 of 152 -- Part 3—Amendment of the Port Services Act 1995 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 88 (v) forms and notices relating to the carrying out of such activities; (cc) the moving of abandoned things; (cd) procedures for dealing with abandoned things, including but not limited to— (i) storage of abandoned things; (ii) the nature of enquiries to be made as to the ownership of the things; (iii) methods of collection of things by owners and notification of that method to owners; (iv) methods of disposal for particular things; (v) methods for recovery of costs of storage and disposal of things; (vi) the keeping of registers of abandoned things;"; (b) in paragraph (d), for "5 penalty units" substitute "20 penalty units". __________________ s. 14 -- 96 of 152 -- Part 4—Amendment of the Transport Act 1983 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 89 PART 4—AMENDMENT OF THE TRANSPORT ACT 1983 15 New Part VIIA inserted in the Transport Act 1983 After Part VII of the Transport Act 1983 insert— "PART VIIA—ENFORCEMENT AND RELATED POWERS FOR THE PORT OF MELBOURNE Division 1—Preliminary 230K Definition In this Part, hazardous port activity provision means a provision of the Port Services Act 1995 or regulations made under that Act as to hazardous port activities, within the meaning of that Act. 230L Appointment (1) The Secretary, by instrument, may appoint as a port safety officer for the port of Melbourne, a person— (a) who is employed in the Department under Part 3 of the Public Administration Act 2004; or (b) who is an employee of the Port of Melbourne Corporation. (2) When appointing a person under this section the Secretary must appoint a person who is suitably qualified or trained to be a port safety officer. (3) An appointment under this section is for the term, and subject to the conditions, specified in the instrument of appointment. See: Act No. 9921. Reprint No. 14 as at 31 July 2009 and amending Act Nos 71/2006, 13/2009 and 45/2009. LawToday: www. legislation. vic.gov.au s. 15 -- 97 of 152 -- Part 4—Amendment of the Transport Act 1983 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 90 (4) Without limiting the conditions to which an appointment under this section may be subject, an appointment may be subject to one or more of the following conditions— (a) that the person appointed may only exercise the functions and powers specified in the instrument of appointment; (b) that the functions and powers that the person may exercise under the appointment are subject to the conditions specified in the instrument of appointment. 230M Identity cards (1) The Secretary must issue an identity card to a port safety officer. (2) An identity card must— (a) contain the name of the port safety officer to whom it is issued; and (b) identify the port safety officer to whom it is issued as a port safety officer; and (c) contain a photograph of the port safety officer. 230N Return of identity cards If a person to whom an identity card has been issued ceases to be a port safety officer, the person must return the identity card to the Secretary as soon as practicable. Penalty: 5 penalty units. s. 15 -- 98 of 152 -- Part 4—Amendment of the Transport Act 1983 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 91 230O Production of identity card (1) A port safety officer must produce his or her identity card for inspection— (a) before exercising a power under Division 2 or Division 3; or (b) if asked to do so by any person at any time during the exercise of a power under Division 2 or Division 3. (2) However, a port safety officer need not produce his or her identity card when asked to do so if— (a) the officer reasonably believes that the production of his or her identity card would— (i) affect the safety or welfare of any person; or (ii) frustrate the effective exercise of a power under Division 2 or Division 3; or (b) the request to produce his or her identity card is made by a person to whom the officer has already produced that identity card on the same day before exercising a power under Division 2 or Division 3. (3) Any action taken or thing done by a port safety officer under Division 2 or Division 3 is not invalidated by his or her failure to produce his or her identity card. s. 15 -- 99 of 152 -- Part 4—Amendment of the Transport Act 1983 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 92 Division 2—Powers of entry and search of vessels 230P Power to enter and inspect vessels (1) For the purpose of determining whether a hazardous port activity provision is being complied with, a port safety officer may enter a vessel that is in port of Melbourne waters. (2) Without limiting subsection (1), a port safety officer who enters a vessel under subsection (1) may, for the purpose set out in that subsection, do any one or more of the following— (a) inspect the vessel; or (b) seize anything found on the vessel that the port safety officer believes on reasonable grounds to be connected with a contravention of a hazardous port activity provision; or (c) take samples, photographs or film, videotape or otherwise record images or record sound in connection with the inspection; or (d) search for and inspect relevant documents; or (e) require any person in or on the vessel to produce to the port safety officer any document that is required to be kept for the purpose set out in subsection (1) and that is located in or on the vessel and that is in the person's custody or possession or under the person's control; or s. 15 -- 100 of 152 -- Part 4—Amendment of the Transport Act 1983 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 93 (f) make copies of, or take extracts from, any document that is required to be kept for the purpose set out in subsection (1) and that is kept in or on the vessel; or (g) exercise any other power under this Act conferred on the port safety officer for those purposes. (3) This section does not authorise the use of force, but the port safety officer may open unlocked doors, panels, objects or other things, or open unlocked places. 230Q Production of identity card by port safety officers before vessel searches (1) This section applies if— (a) a port safety officer wishes to inspect a vessel under this Division; and (b) the master or operator of the vessel, or another person apparently in charge of the vessel, is present in, on or near the vessel. (2) Before starting to inspect the vessel, the port safety officer must identify himself or herself to the person by producing his or her identity card for inspection by the person. 230R Consent not needed for inspections A port safety officer may exercise a power under this Division at any time, and without the consent of the master or owner of the vessel, or other person apparently in charge of the vessel, or any other person. s. 15 -- 101 of 152 -- Part 4—Amendment of the Transport Act 1983 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 94 Division 3—Powers of entry and search of premises 230S Entry of premises with consent (1) A port safety officer may enter premises on port of Melbourne land, with the consent of the occupier of the premises, if the port safety officer believes on reasonable grounds that the entry is necessary because a person has contravened a hazardous port activity provision. (2) A port safety officer must not exercise a power under subsection (1) in any part of the premises that is used for residential purposes. (3) A port safety officer must not exercise a power under subsection (1) unless, before asking for the consent of the occupier, the port safety officer— (a) has produced his or her identity card for inspection; and (b) has informed the occupier— (i) of the purpose of the entry and inspection; and (ii) of the powers that the port safety officer may exercise on entry; and (iii) that the occupier is not required to consent. (4) If an occupier consents to the exercise of a power under subsection (1), the port safety officer who requested consent must, before entering the premises, ask the occupier to sign an acknowledgment of the consent. s. 15 -- 102 of 152 -- Part 4—Amendment of the Transport Act 1983 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 95 (5) An acknowledgment must state— (a) that the occupier has been informed— (i) of the purpose of the entry and inspection; and (ii) of the powers that the port safety officer may exercise on entry; and (iii) that the occupier is not required to consent; and (c) the purpose of the entry; and (d) that the occupier has consented to the entry and the exercise of the powers; and (e) the date and time that the occupier consented. (6) If an occupier consents to the seizure or taking of any thing during an inspection under this section, the port safety officer must, before seizing or taking the thing, ask the occupier to sign an acknowledgment stating— (a) that the occupier has consented to the seizure or taking of the thing; and (b) the date and time that the occupier consented. (7) An occupier who signs an acknowledgment under this section must immediately be given a copy of the signed acknowledgment. (8) If, in any proceeding, an acknowledgment is not produced to the court or a tribunal, it must be presumed, until the contrary is proved, that the occupier did not consent to the entry and exercise of powers or to the seizure or the taking of the thing. s. 15 -- 103 of 152 -- Part 4—Amendment of the Transport Act 1983 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 96 230T Entry of premises without consent (1) A port safety officer may enter premises on port of Melbourne land if the port safety officer believes on reasonable grounds that the entry is necessary because a person has contravened a hazardous port activity provision. (2) A port safety officer— (a) must not exercise a power under subsection (1) in any part of the premises that is used for residential purposes; and (b) must not exercise a power under subsection (1) except— (i) when the premises are open for business; or (ii) when hazardous port activities are being carried out on the premises. (3) If a port safety officer exercises a power of entry under this section without the owner or occupier being present the port safety officer must, on leaving the premises, leave a notice setting out— (a) the time of entry; and (b) the purpose of entry; and (c) a description of things done while on the premises; and (d) the time of departure; and (e) the procedure for contacting the port authority for further details of the entry. s. 15 -- 104 of 152 -- Part 4—Amendment of the Transport Act 1983 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 97 230U Powers that may be exercised on entry A port safety officer who enters premises under section 230S or 230T may do any one or more of the following— (a) inspect the premises; or (b) seize any thing found at the premises that the port safety officer believes on reasonable grounds to be connected with a contravention of a hazardous port activity provision; or (c) take samples, photographs or film, videotape or otherwise record images or record sound in connection with the inspection; or (d) search for and inspect relevant documents; or (e) require any person at the premises to produce to the port safety officer any document that is required to be kept for the purpose for which the inspection is being made and that is located at the premises and that is in the person's custody or possession or under the person's control; or (f) make copies of, or take extracts from, any document that is required to be kept for the purpose for which the inspection is being made and that is kept at the premises; or (g) exercise any other power under this Act conferred on the port safety officer for those purposes. s. 15 -- 105 of 152 -- Part 4—Amendment of the Transport Act 1983 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 98 230V Securing a site (1) A port safety officer may take all reasonable steps to secure the perimeter of any area of land entered under this Division if he or she believes on reasonable grounds that it is necessary— (a) for the purpose of ascertaining whether an offence against a hazardous port activity provision has been committed; or (b) to preserve evidence relating to the commission of an offence against a hazardous port activity provision. (2) The perimeter of an area secured under this section may be secured for a period that the port safety officer considers appropriate or the Secretary specifies. 230W Offence to enter secured site A person must not enter a site the perimeter of which has been secured under section 230V unless the person has a reasonable excuse. Penalty: 60 penalty units. Division 4—Provisions as to use of or seizure of equipment or goods 230X Use of equipment to examine or process things (1) A port safety officer may bring on to any premises or vessel at which the port safety officer is exercising a power under Division 2 or Division 3 any equipment reasonably necessary for the examination or processing of things found at the premises or s. 15 -- 106 of 152 -- Part 4—Amendment of the Transport Act 1983 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 99 on the vessel in order to determine whether they are things that may be seized. (2) The port safety officer may operate equipment already at the premises to carry out the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized, if the port safety officer believes on reasonable grounds that— (a) the equipment is suitable for the examination or processing; and (b) the examination or processing can be carried out without damage to the equipment or the thing. 230Y Copies of certain things seized to be given (1) If, in exercising a power under Division 2 or Division 3, a port safety officer seizes— (a) a document; or (b) a thing that can be readily copied; or (c) a storage device that contains information that can be readily copied— the port safety officer must give a copy of the document, thing or information to the owner or the custodian of the document, thing or device as soon as practicable after the seizure. (2) Subsection (1) does not apply if the port safety officer is unable to discover the identity of the owner or custodian of the document, thing or device. (3) If it is not practicable to comply with subsection (1) in respect of a document, thing or device before the port safety officer s. 15 -- 107 of 152 -- Part 4—Amendment of the Transport Act 1983 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 100 finishes the search, the port safety officer must give a receipt for it to the person from whom it is seized and removed. 230Z Access to seized things (1) If a thing is seized under Division 2 or Division 3, the port safety officer who seized the thing must, if practicable, allow the person who would normally be entitled to possession of it reasonable access to it while it remains in the possession, or under the control, of the port safety officer. (2) This section does not apply if the port safety officer has given the person an accurate copy of the thing. 230ZA Retention and return of seized documents or things (1) If a port safety officer seizes a document or other thing under this Part, the port safety officer must take reasonable steps to return the document or thing to the person from whom it was seized if the reason for its seizure no longer exists. (2) If the document or thing seized has not been returned within 3 months after it was seized, the port safety officer must take reasonable steps to return it unless— (a) proceedings for the purpose for which the document or thing was seized or retained have commenced within that 3 month period and those proceedings (including any appeal) have not been completed; or (b) the Magistrates' Court makes an order under section 230ZB extending the period during which the document or thing may be retained. s. 15 -- 108 of 152 -- Part 4—Amendment of the Transport Act 1983 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 101 230ZB Magistrates' Court may extend 3 month period (1) A port safety officer may apply to the Magistrates' Court within 3 months after seizing a document or thing under Division 2 or Division 3 for an extension (not exceeding 3 months) of the period for which the port safety officer may retain the document or thing but so that the total period of retention does not exceed 12 months. (2) The Magistrates' Court may order such an extension if it is satisfied that the total period of retention of the document or thing does not exceed 12 months and that retention of the document or thing is necessary— (a) for the purpose of an investigation into whether a contravention of a hazardous port activity provision; or (b) to enable evidence of a contravention of a hazardous port activity provision to be obtained for the purpose of a proceeding under such a hazardous port activity provision. (3) The Magistrates' Court may adjourn an application to enable notice of the application to be given to any person. Division 5—General 230ZC Requirement to assist port safety officer during entry (1) A port safety officer who is exercising a power under and in accordance with Division 2 or 3 may require the occupier of the premises or master of a vessel— s. 15 -- 109 of 152 -- Part 4—Amendment of the Transport Act 1983 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 102 (a) to produce documents to the port safety officer; and (b) to give reasonable assistance to the port safety officer. (2) Without limiting subsection (1), the port safety officer may direct the person to find and gain access to electronically stored information. (3) A person to whom a direction is given under this section must not refuse or fail to comply with a direction under subsection (1) unless the person has a reasonable excuse. Penalty: 60 penalty units. (4) In proceedings for an offence against subsection (3), it is a reasonable excuse if the direction was unreasonable. (5) In proceedings for an offence against subsection (3), it is a defence if the person charged proves on the balance of probabilities that the direction or its subject- matter was outside the scope of the business or other activities of the person. 230ZD Protection against self-incrimination (1) It is a reasonable excuse for a natural person to refuse or fail to give information or do any other thing that the person is required to do by or under this Part, if the giving of the information or the doing of that other thing would tend to incriminate the person. (2) Despite subsection (1), it is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is required to produce by or under this Part, if the production of the document would tend to incriminate the person. s. 15 -- 110 of 152 -- Part 4—Amendment of the Transport Act 1983 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 103 230ZE Persons who may bring proceedings (1) A port safety officer may bring proceedings for an offence against a hazardous port activity provision. (2) A port safety officer may conduct before a court any proceedings for an offence against a hazardous port activity provision. __________________". __________________ s. 15 -- 111 of 152 -- Part 5—Amendment of the Road Safety Act 1986 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 104 PART 5—AMENDMENT OF THE ROAD SAFETY ACT 1986 16 Suspension of approval of alcohol interlock supplier (1) In the Road Safety Act 1986— (a) in section 50AAD(3)(a)(ii) and (iii), after "cancelled" insert "or suspended"; (b) in section 50AAD(3), after "approved alcohol interlock supplier" (where last occurring) insert "whose approval was in force"; (c) in the heading to section 50AAI, after "Cancellation" insert "or suspension"; (d) in section 50AAI(1), after "cancel" insert "or suspend"; (e) in section 50AAI(2)— (i) after "cancels" insert "or suspends"; and (ii) after "cancelled" insert "or suspended (as the case requires)"; (f) in section 50AAI(4), for "(2)(b) and (3)" substitute "(2)(b), (3) and (3A)"; (g) in the note at the foot of section 50AAI(4)— (i) after "cancelled" insert "or suspended"; and (ii) after "approved" insert "or that the supplier's approval was in force (as the case requires)"; (h) in section 50AAJ(1)(b)— (i) for "50AAH or 50AAI" substitute "50AAH, 50AAI or 50AAIB"; and (ii) after "cancel" insert "or suspend". s. 16 See: Act No. 127/1986. Reprint No. 11 as at 29 September 2008 and amending Act Nos 19/1991, 30/2007, 2/2008, 12/2008, 46/2008, 77/2008, 13/2009, 17/2009, 28/2009 and 55/2009. LawToday: www. legislation. vic.gov.au -- 112 of 152 -- Part 5—Amendment of the Road Safety Act 1986 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 105 (2) After section 50AAI(3) of the Road Safety Act 1986 insert— "(3A) If the Corporation suspends the approval of an alcohol interlock supplier, a person whose driver licence or permit is subject to an alcohol interlock condition breaches the condition if— (a) the supplier, or a person or body authorised by the supplier, installs or maintains an approved alcohol interlock in a motor vehicle after the later of the following and before the end of the period of suspension— (i) the day specified in the notice published under subsection (2)(a); or (ii) if the person is sent a notice under subsection (2)(b), the day specified in the notice; and (b) the person drives the motor vehicle with that approved alcohol interlock after the later of those days and before the end of the period of suspension.". 17 Conditions on approvals (1) After section 50AAF(2) of the Road Safety Act 1986 insert— "(2A) Without limiting subsection (1) or (3), a condition on an approval may require an alcohol interlock supplier— (a) not to install approved alcohol interlocks for a specified period not exceeding 3 months; or (b) not to engage a specified agent to install or maintain approved alcohol interlocks for a specified period.". s. 17 -- 113 of 152 -- Part 5—Amendment of the Road Safety Act 1986 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 106 (2) After section 50AAF(3) of the Road Safety Act 1986 insert— "(4) Despite subsection (3), the Corporation may immediately vary or revoke a condition on an approval or impose a new condition on an approval if the Corporation considers it necessary to do so in the interests of public safety. (5) A person or body whose approval is affected by a decision of the Corporation under subsection (4) may require the Corporation, by notice served on the Corporation, to hold an inquiry under section 50AAIB into the decision. (6) The Corporation must commence an inquiry under section 50AAIB within 7 days after service on the Corporation of a notice under subsection (5).". 18 New sections 50AAIA, 50AAIB and 50AAIC inserted After section 50AAI of the Road Safety Act 1986 insert— "50AAIA Power of immediate suspension (1) The Corporation may immediately suspend an approval under section 50AAE if the Corporation considers it necessary to do so in the interests of public safety. (2) A suspension under this section may be for a specified period or until a specified event or until a further determination made by the Corporation. (3) A person or body whose approval under section 50AAE has been suspended under this section may require the Corporation, by notice served on the Corporation, to hold an s. 18 -- 114 of 152 -- Part 5—Amendment of the Road Safety Act 1986 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 107 inquiry under section 50AAIB into the suspension. (4) The Corporation must commence an inquiry under section 50AAIB within 7 days after service on the Corporation of a notice under subsection (3). (5) If an inquiry is held under section 50AA1B, a suspension under this section, if then still in effect, ceases to have effect on the completion of that inquiry. 50AAIB Inquiry (1) The Corporation may hold an inquiry for the purpose of determining whether proper cause exists for taking action under section 50AAF(4) or 50AAIA against an approved alcohol interlock supplier. (2) Following an inquiry, if the Corporation is satisfied that proper cause for taking action under section 50AAF(4) or 50AAIA against the alcohol interlock supplier exists, the Corporation may— (a) reprimand the supplier; (b) warn the supplier that should further proper cause for taking action be found to exist, the supplier's approval may be cancelled; (c) impose one or more new conditions on the approval; (d) shorten the period for which the approval is to remain in force; (e) suspend the approval for a specified period or until a specified event or until a further determination made by the Corporation; s. 18 -- 115 of 152 -- Part 5—Amendment of the Road Safety Act 1986 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 108 (f) cancel the approval immediately or with effect from a specified later date. (3) In exercising its powers under this section, the Corporation— (a) must act fairly and according to equity and good conscience without regard to technicalities or legal forms; and (b) is not bound by rules or practice as to evidence but may inform itself in relation to any matter in any manner that it thinks fit. (4) Subject to this section, the procedure of the Corporation on any inquiry under this section is in the discretion of the Corporation. 50AAIC Effect of suspension An alcohol interlock supplier whose approval under section 50AAE is suspended is not approved during the period of the suspension.". 19 Impoundment regime In section 84C(1) of the Road Safety Act 1986, in paragraph (f) of the definition of relevant offence, after "offence against" insert "section 65B or". 20 Disclosure of information (1) In section 92(1) of the Road Safety Act 1986 insert the following definition— "public transport regulator means— (a) the Director of Public Transport referred to in section 8 of the Transport Act 1983; s. 19 -- 116 of 152 -- Part 5—Amendment of the Road Safety Act 1986 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 109 (b) the Director, Public Transport Safety appointed under section 9L of the Transport Act 1983;". (2) After section 92(3)(c) of the Road Safety Act 1986 insert— "(ca) to or by a public transport regulator for the purposes of performing a function or exercising a power of the public transport regulator under the Transport Act 1983, the Public Transport Competition Act 1995, the Rail Safety Act 2006, the Bus Safety Act 2009 or the regulations made under any of those Acts; or (cb) to or by the Port of Melbourne Corporation established under section 10 of the Port Services Act 1995 for the purpose of ascertaining the ownership of abandoned or unattended vehicles in the port of Melbourne (within the meaning of that Act); or". (3) After section 92(3)(ha) of the Road Safety Act 1986 insert— "(hb) to a government department or agency of this or any other State or a Territory or the Commonwealth that is specified by the Minister, by notice published in the Government Gazette, for the purposes of this paragraph to assist with verification of information in a driver licence or learner permit issued, or purported to have been issued, under this Act that is produced as evidence of identity to the government department or agency; or". s. 20 -- 117 of 152 -- Part 5—Amendment of the Road Safety Act 1986 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 110 (4) After section 92(3)(i) of the Road Safety Act 1986 insert— "(iaa) if the Minister makes a declaration under section 92A in relation to exceptional circumstances, for the purposes of dealing with those exceptional circumstances in accordance with section 92B; or". (5) In section 92(3)(ca) of the Road Safety Act 1986, for "Public Transport Competition Act 1995" substitute "Bus Services Act 1995". 21 New sections 92A and 92B inserted After section 92 of the Road Safety Act 1986 insert— "92A Minister may make declaration in exceptional circumstances (1) The Minister, by notice published in the Government Gazette, may make a declaration under this section if the Minister is satisfied that— (a) exceptional circumstances, whether in or outside Victoria, exist or have occurred that— (i) endanger, or threaten to endanger, the life, health or safety of any person; or (ii) destroy or damage, or threaten to destroy or damage, any property, the environment or part of the environment; and (b) it is appropriate to disclose and use information that would otherwise be protected from disclosure or use by section 92 pending, during or following those exceptional circumstances. s. 21 -- 118 of 152 -- Part 5—Amendment of the Road Safety Act 1986 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 111 Note Events such as natural disasters, fires, explosions, accidents, unlawful acts (whether actual or threatened) and disruptions to essential services may be the basis for a declaration, if the requirements of subsection (1) are met. (2) A declaration takes effect on the day of publication of the notice referred to in subsection (1) or any later date specified in the declaration. (3) The Minister, by notice published in the Government Gazette, may revoke a declaration. (4) A declaration ceases to have effect at the earliest of— (a) if a time at which the declaration will cease to have effect is specified in the declaration, that time; or (b) the time at which the declaration is revoked; or (c) the expiry of 12 months after the declaration is made. 92B Disclosure of personal information in exceptional circumstances (1) In this section— permitted purpose means a purpose that directly relates to the State's response to exceptional circumstances in respect of which a declaration under section 92A is in force, including— (a) identifying individuals who— (i) are, or may be, injured, missing or dead as a result of the exceptional circumstances; or s. 21 -- 119 of 152 -- Part 5—Amendment of the Road Safety Act 1986 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 112 (ii) are, or may be, otherwise involved in the exceptional circumstances; (b) assisting individuals involved in the exceptional circumstances to obtain services such as government services, medical or other treatment, health services or financial or other humanitarian assistance; (c) assisting with law enforcement in relation to the exceptional circumstances; (d) coordination or management of the exceptional circumstances. (2) At any time when a declaration under section 92A is in force in relation to exceptional circumstances, the Corporation may disclose or use information of a personal nature relating to an individual that would otherwise be protected from disclosure or use by section 92 if— (a) the Corporation reasonably believes that the individual concerned may be involved in the exceptional circumstances; and (b) the disclosure or use is for a permitted purpose in relation to the exceptional circumstances; and (c) the disclosure is to an agency or organisation that— (i) is, or is likely to be, involved in managing, or assisting in the management of, the exceptional circumstances; or s. 21 -- 120 of 152 -- Part 5—Amendment of the Road Safety Act 1986 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 113 (ii) is directly involved in providing government services, medical or other treatment, health services or financial or other humanitarian assistance services to individuals involved in the exceptional circumstances; and (d) the disclosure is not to a media organisation.". 22 Exemptions from fatigue management requirements (1) For section 191ZZ(1) of the Road Safety Act 1986 substitute— "(1) A person who— (a) is acting for an emergency service and who has time-critical duties on the way to, or during, an emergency; or (b) is a driver for a rail replacement bus service and who is responding to a rail disruption; or (c) is a driver for a bus service and who is responding to an emergency— is exempted in the course of carrying out those duties from the prescribed provisions of this Act or the regulations. Note Other fatigue-related duties continue to apply.". (2) For section 191ZZ(2) of the Road Safety Act 1986 substitute— "(2) A person who is acting for an emergency service and who is returning from attending an emergency is exempted from the provisions of this Act or the regulations that are prescribed for the purposes of subsection (1) if non-compliance with those provisions s. 22 -- 121 of 152 -- Part 5—Amendment of the Road Safety Act 1986 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 114 does not present an unreasonable danger to other road users.". (3) In section 191ZZ(3) of the Road Safety Act 1986— (a) in paragraph (f) of the definition of emergency service, for "service." substitute "service;"; (b) insert the following definitions— "rail disruption means the unplanned disruption of a rail service that is sufficiently serious to require the provision of a rail replacement bus service; rail replacement bus service means a bus service (operated by an accredited person within the meaning of the Public Transport Competition Act 1995) which carries passengers of a disrupted rail service; rail service means a train service or a tram service.". (4) In section 191ZZ(3) of the Road Safety Act 1986, in the definition of rail replacement bus service, for "an accredited person within the meaning of the Public Transport Competition Act 1995" substitute "an accredited bus operator within the meaning of the Bus Safety Act 2009". 23 Statute law revision (1) In section 48(2)(d) of the Road Safety Act 1986, for "offence against" substitute "offence, against". (2) In section 51(2) of the Road Safety Act 1986, for "charge" substitute "charge-sheet". s. 23 -- 122 of 152 -- Part 5—Amendment of the Road Safety Act 1986 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 115 (3) In section 80(2) of the Road Safety Act 1986, for "traffic control signal" (wherever occurring) substitute "traffic signal". __________________ s. 23 -- 123 of 152 -- Part 6—Amendment of the Road Management Act 2004 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 116 PART 6—AMENDMENT OF THE ROAD MANAGEMENT ACT 2004 24 Powers of a road authority After the note at the foot of section 35(4) of the Road Management Act 2004 insert— "(5) Despite subsection (4), if a road authority is prescribed for the purposes of section 37(2A) as the responsible road authority for road- related infrastructure, or a class of road- related infrastructure, on a road, or a class of road, a function or power that would otherwise be a function or power of a municipal council in relation to that road- related infrastructure under this Act or any other Act is subject to those regulations.". 25 Responsible road authority After the example at the foot of section 37(2) of the Road Management Act 2004 insert— "(2A) Despite subsection (2), the regulations may provide that a prescribed road authority is the responsible road authority for prescribed road-related infrastructure, or a prescribed class of road-related infrastructure, on a prescribed road, or a prescribed class of road.". 26 Removal of stationary vehicles In section 119A(2) of the Road Management Act 2004— (a) in paragraph (b), for "place." substitute "place; and"; s. 24 See: Act No. 12/2004. Reprint No. 2 as at 11 October 2006 and amending Act Nos 61/2005, 74/2006, 85/2006, 69/2007, 74/2007, 13/2009, 17/2009 and 28/2009. LawToday: www. legislation. vic.gov.au -- 124 of 152 -- Part 6—Amendment of the Road Management Act 2004 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 117 (b) after paragraph (b) insert— "(c) may store the vehicle.". 27 Removal of abandoned property (1) In section 119B of the Road Management Act 2004, after "remove" insert "or cause to be removed". (2) At the end of section 119B of the Road Management Act 2004 insert— "(2) VicRoads may recover from the owner of any thing removed under this section any reasonable costs incurred in removing it.". 28 Regulations (1) After section 132(2)(a) of the Road Management Act 2004 insert— "(ab) removing or relocating from a road or other property owned or occupied by a road authority any thing that poses or may pose a risk to the safety of road users or the community;". (2) After section 132(2)(n) of the Road Management Act 2004 insert— "(na) controlling or removing vegetation, whether growing or dead, in a road reserve that may pose a risk to the safety of road users or the community;". (3) After section 132(2)(t) of the Road Management Act 2004 insert— "(ta) coordinating the use of a road reserve if 2 or more of any of the following have road management functions in relation to the road reserve— (i) a road authority; (ii) a utility; s. 27 -- 125 of 152 -- Part 6—Amendment of the Road Management Act 2004 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 118 (iii) a provider of public transport; (iv) an infrastructure manager; (v) a works manager;". 29 Power to move other obstructions At the end of clause 6 of Schedule 4 to the Road Management Act 2004 insert— "(2) A State road authority may recover from the owner of any thing moved under subclause (1)(a) any reasonable costs incurred in moving it.". __________________ s. 29 -- 126 of 152 -- Part 7—Amendment of the Melbourne City Link Act 1995 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 119 PART 7—AMENDMENT OF THE MELBOURNE CITY LINK ACT 1995 30 Repeal Section 87(3AA) of the Melbourne City Link Act 1995 is repealed. 31 Statute law revision In section 3 of the Melbourne City Link Act 1995— (a) the definition of Council is repealed; (b) insert the following definition— "Council has the same meaning as in the Local Government Act 1989;". __________________ s. 30 See: Act No. 107/1995. Reprint No. 7 as at 1 September 2008 and amending Act Nos 14/2007, 30/2007, 66/2008, 6/2009, 17/2009 and 28/2009. LawToday: www. legislation. vic.gov.au -- 127 of 152 -- Part 8—Amendment of the Accident Towing Services Act 2007 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 120 PART 8—AMENDMENT OF THE ACCIDENT TOWING SERVICES ACT 2007 32 Roster entitlements In section 48 of the Accident Towing Services Act 2007, after "entitles the holder of the licence" insert ", subject to the regulations,". 33 New sections inserted after section 140H After section 140H of the Accident Towing Services Act 2007 insert— "140I Offence not to carry permit when driving (1) If the holder of a tow truck trainee permit is driving a tow truck or accompanying another person who is driving a tow truck in circumstances in which he or she is required under this Division to have a tow truck trainee permit, he or she must carry his or her permit. Penalty: 15 penalty units. (2) If the holder of a tow truck trainee permit is driving a tow truck and another person is accompanying the holder of the permit in circumstances in which the other person is required under this Act, or under the conditions of the permit, to hold a tow truck driver accreditation, the other person must carry his or her certificate of accreditation. Penalty: 15 penalty units. s. 32 See: Act No. 30/2007 and amending Act No. 28/2009. LawToday: www. legislation. vic.gov.au -- 128 of 152 -- Part 8—Amendment of the Accident Towing Services Act 2007 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 121 140J Offence not to produce permit when asked (1) The holder of a tow truck trainee permit must produce his or her permit if— (a) he or she is driving a tow truck or accompanying another person who is driving a tow truck in circumstances in which he or she is required under this Division to hold the permit; and (b) he or she is asked to produce the permit by— (i) an authorised officer; or (ii) a member of the force; or (iii) the owner or driver of an accident damaged motor vehicle that is being, or is about to be towed by the tow truck. Penalty: 15 penalty units. (2) The holder of a tow truck driver accreditation must produce his or her certificate of accreditation if— (a) the holder of the accreditation is accompanying the holder of a tow truck trainee permit who is driving a tow truck, in circumstances in which the holder of the accreditation is required under this Act or the conditions of the permit to hold the accreditation; and (b) the holder of the accreditation is asked to produce the accreditation by— (i) an authorised officer; or (ii) a member of the force; or s. 33 -- 129 of 152 -- Part 8—Amendment of the Accident Towing Services Act 2007 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 122 (iii) the owner or driver of an accident damaged motor vehicle that is being, or is about to be towed by the tow truck. Penalty: 15 penalty units.". 34 Direction to state name and address In section 201(1) of the Accident Towing Services Act 2007, for "or licence" substitute ", a licence or a tow truck trainee permit". 35 Regulation making powers (1) In section 223(1)(d) of the Accident Towing Services Act 2007, after "but not limited to," insert "the inclusion of persons or refusal to include persons on the roster or". (2) In section 223(2) of the Accident Towing Services Act 2007— (a) in paragraph (f), for "as is specified." substitute "as is specified; and"; (b) after paragraph (f) insert— "(g) may provide for fees to be payable in respect of tow truck licences, which may be payable annually.". __________________ s. 34 -- 130 of 152 -- Part 9—Amendments relating to VicRoads Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 123 PART 9—AMENDMENTS RELATING TO VICROADS Division 1—Transport Act 1983 36 Amendment of section 16—Objects and functions of Roads Corporation In section 16(1)(g) of the Transport Act 1983 omit "in connection with transport". Division 2—EastLink Project Act 2004 37 Amendment of section 3—Definitions In section 3(1) of the EastLink Project Act 2004 for the definition of Authority substitute— "Authority means VicRoads;". 38 New section 4A inserted After section 4 of the EastLink Project Act 2004 insert— "4A Functions and powers of VicRoads (1) For the purposes of this Act, VicRoads has the following functions— (a) on behalf of the State, to administer and manage agreements and arrangements between the State and any other person for, or relating to, the development or delivery of the Project; s. 36 See: Act No. 39/2004. Reprint No. 2 as at 31 July 2009 and amending Act No. 6/2009. LawToday: www. legislation. vic.gov.au -- 131 of 152 -- Part 9—Amendments relating to VicRoads Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 124 (b) to make recommendations regarding those agreements and arrangements to the Minister; (c) to facilitate and coordinate consultations with statutory authorities and agencies of the State and other bodies or persons involved in, or affected by, the development or operation of the Project; (d) to negotiate and enter into arrangements with statutory authorities and agencies of the State and other bodies or persons involved in, or affected by, the development or operation of the Project; (e) to make recommendations to the Minister in relation to facilitating the Project and coordinating with statutory authorities, agencies of the State and other bodies or persons involved in, or affected by, the development or operation of the Project; (f) to ensure that agreements and arrangements between the State and any other person for, or relating to, the development or delivery of the Project are performed in accordance with their terms; (g) to manage the responsibilities of the State in relation to the operation of the Project; s. 38 -- 132 of 152 -- Part 9—Amendments relating to VicRoads Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 125 (h) to make recommendations to the Minister on public safety issues relating to the Project; (i) to manage, on behalf of the State, regulatory issues arising from the operation of the Project. (2) VicRoads must comply with any directions given by the Minister, including any direction relating to the provision of information or reports concerning the exercise of its powers and the performance of its functions.". 39 Consequential amendments (1) In sections 1(c), 1(e), 35(b) and 47(2)(b) of the EastLink Project Act 2004 for "the Southern and Eastern Integrated Transport Authority" substitute "VicRoads". (2) In section 44 of the EastLink Project Act 2004— (a) subsection (2)(a) is repealed; (b) in subsection (3) for "VicRoads or the" substitute "The". (3) In section 81 of the EastLink Project Act 2004— (a) subsection (2)(a) is repealed; (b) in subsection (3) for "VicRoads or the" substitute "The". s. 39 -- 133 of 152 -- Part 9—Amendments relating to VicRoads Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 126 40 New Part 12 inserted After Part 11 of the EastLink Project Act 2004 insert— "PART 12—TRANSFER OF PROJECT FROM THE SOUTHERN AND EASTERN INTEGRATED TRANSPORT AUTHORITY TO VICROADS 260 Definitions In this Part— instrument includes a document and an oral agreement; liabilities means all liabilities, duties and obligations, whether actual, contingent or prospective; property means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description; rights means all rights, powers, privileges and immunities, whether actual, contingent or prospective; Southern and Eastern Integrated Transport Authority means the Southern and Eastern Integrated Transport Authority established under the Southern and Eastern Integrated Transport Authority Act 2003; transfer date means the date specified under section 261(2)(d) for the purposes of the transfer. s. 40 -- 134 of 152 -- Part 9—Amendments relating to VicRoads Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 127 261 Transfer of the Project (1) The Southern and Eastern Integrated Transport Authority must give to the Minister within the period of 3 months after the date on which this Act receives the Royal Assent a statement or statements approved by the Minister relating to the property, rights and liabilities of the Southern and Eastern Integrated Transport Authority in relation to the Project at a date specified by the Minister for the purposes of the relevant statement. (2) A statement under this section in relation to the Project— (a) must allocate to VicRoads all the property, rights and liabilities of the Southern and Eastern Integrated Transport Authority which relate to the Project; and (b) must be agreed to by the Chief Executive of VicRoads, and (c) must be signed by the Chairperson of the Southern and Eastern Integrated Transport Authority and the Chief Executive of VicRoads; and (d) must specify the transfer date on which the transfer is to take effect. (3) If a statement under this section is approved by the Minister— (a) the Minister must sign the statement; and (b) the statement is an allocation statement for the purposes of this Part; and s. 40 -- 135 of 152 -- Part 9—Amendments relating to VicRoads Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 128 (c) the Minister must cause the allocation statement to be published in the Government Gazette. (4) The Minister may at any time direct the Southern and Eastern Integrated Transport Authority to amend a statement given to the Minister under this section as specified in the direction. (5) An allocation statement under this section may be amended in writing signed by the Minister. (6) If an allocation statement is amended under subsection (5), the amendments must be published in the Government Gazette. (7) Nothing in this section affects or limits any approval, agreement or other authority that either the Southern and Eastern Integrated Transport Authority or VicRoads may require or need to obtain before it can be a party to the transfer. (8) In this section, statement and allocation statement include a statement or allocation statement amended in accordance with this section. Note For the definition of Project see section 4. 262 Property transferred to VicRoads On the transfer date— (a) all property and rights of the Southern and Eastern Integrated Transport Authority that are allocated to VicRoads under an allocation statement, vest in VicRoads; and s. 40 -- 136 of 152 -- Part 9—Amendments relating to VicRoads Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 129 (b) all liabilities of the Southern and Eastern Integrated Transport Authority that are allocated to VicRoads under an allocation statement, become liabilities of VicRoads. 263 Transfer subject to encumbrances Unless an allocation statement under this Part otherwise provides, where, under this Part property and rights vest in VicRoads or liabilities become liabilities of VicRoads— (a) the property and rights so vested are subject to the encumbrances (if any) to which they were subject immediately before so vesting; and (b) the rights to which the Southern and Eastern Integrated Transport Authority was entitled in respect of those liabilities immediately before they ceased to be liabilities of the Southern and Eastern Integrated Transport Authority vest in VicRoads. 264 Substitution of party to agreement If, under an allocation statement, the rights and liabilities of the Southern and Eastern Integrated Transport Authority under an agreement are transferred to VicRoads— (a) VicRoads becomes, on the transfer date, a party to the agreement in the place of the Southern and Eastern Integrated Transport Authority; and (b) on and after the transfer date, the agreement has effect as if VicRoads had always been a party to the agreement. s. 40 -- 137 of 152 -- Part 9—Amendments relating to VicRoads Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 130 265 Instruments Each Southern and Eastern Integrated Transport Authority instrument relating to property transferred to VicRoads under this Part continues to have effect according to its tenor on and after the transfer date as if a reference in the instrument to the Southern and Eastern Integrated Transport Authority were a reference to VicRoads. 266 Proceedings If, immediately before the transfer date, proceedings relating to property transferred to VicRoads (including arbitration proceedings) to which the Southern and Eastern Integrated Transport Authority was a party were pending or existing in any court or tribunal, then, on and after the transfer date, VicRoads is substituted for the Southern and Eastern Integrated Transport Authority as a party to the proceedings and has the same rights in the proceedings as the Southern and Eastern Integrated Transport Authority had. 267 Interests in land Without affecting the generality of this Part and despite anything to the contrary in any other Act (other than the Charter of Human Rights and Responsibilities) or law, if, immediately before the transfer date, the Southern and Eastern Integrated Transport Authority is, in relation to property transferred to VicRoads, the registered proprietor of an interest in land under the Transfer of Land Act 1958, then on and after the transfer date— s. 40 -- 138 of 152 -- Part 9—Amendments relating to VicRoads Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 131 (a) VicRoads is deemed to be the registered proprietor of that interest in land; and (b) VicRoads has the same rights and remedies in respect of that interest as the Southern and Eastern Integrated Transport Authority had. 268 Action by Registrar of Titles On being requested to do so and on delivery of any relevant instrument or document, the Registrar of Titles must make any recordings in the Register that are necessary because of the operation of this Part. 269 Taxes No stamp duty or other tax is chargeable under any Act in respect of anything done under this Part or in respect of any act or transaction connected with or necessary to be done by reason of the Part, including a transaction entered into or an instrument made, executed, lodged or given, for the purpose of, or connected with the transfer of property, rights or liabilities under an allocation statement. 270 Evidence Documentary or other evidence that would have been admissible for or against the interests of the Southern and Eastern Integrated Transport Authority in relation to property transferred to VicRoads is admissible for or against the interests of VicRoads. s. 40 -- 139 of 152 -- Part 9—Amendments relating to VicRoads Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 132 271 Transfer of employees (1) This section applies to an employee who is not employed under Part 3 of the Public Administration Act 2004. (2) If as a result of an allocation statement it is necessary to transfer any employees from the Southern and Eastern Integrated Transport Authority to VicRoads, the Secretary to the Department of Transport must list in writing the persons who were employed by the Southern and Eastern Integrated Transport Authority before the transfer date and who are to be transferred to VicRoads. (3) An employee transferred under this section is to be regarded as— (a) being employed by VicRoads with effect from the transfer date; (b) having been so employed on the same terms and conditions as those that applied to the person immediately before the transfer date; (c) having accrued an entitlement to benefits in connection with that employment that is equivalent to the entitlement that the person had accrued immediately before the transfer date. (4) The service of an employee transferred under this section is to be regarded for all purposes as having been continuous with the service of the employee immediately before the transfer date. (5) An employee transferred under this section is not entitled to receive any payment or other benefit by reason only of having ceased to be employed by the Southern and Eastern s. 40 -- 140 of 152 -- Part 9—Amendments relating to VicRoads Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 133 Integrated Transport Authority because of the operation of this Part. (6) A certificate purporting to be signed by the Secretary to the Department of Transport certifying that a person named in the certificate was, with effect from the transfer date, employed by virtue of this section by VicRoads, is admissible in evidence in any proceedings as evidence of the matters stated in it. (7) The superannuation entitlements of any person who is transferred under this section are to be taken not to be affected by that person being transferred. (8) Nothing in this section prevents— (a) any of the terms and conditions of employment of a person transferred under this section from being altered by or under any law, award or agreement with effect from any time after the transfer date; (b) a person transferred under this section from resigning or being dismissed at any time after the transfer date in accordance with the then existing terms and conditions of his or her employment with VicRoads. 272 Validity of things done under this Part Nothing effected by, or done or suffered under, this Part— (a) is to be regarded as placing any person in breach of contract or confidence or as otherwise making any person guilty of a civil wrong; or s. 40 -- 141 of 152 -- Part 9—Amendments relating to VicRoads Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 134 (b) is to be regarded as placing any person in breach of or as constituting a default under any Act (other than the Charter of Human Rights and Responsibilities) or other law or any provision in any agreement, arrangement or understanding including, without limiting the generality of the foregoing, any provision prohibiting, restricting or regulating the assignment or transfer of any property or the disclosure of any information; or (c) is to be regarded as fulfilling any condition which allows a person to exercise a right or remedy in respect of or to terminate any agreement or obligation; or (d) is to be regarded as giving rise to any remedy for a party to a contract or an instrument or as causing or permitting the termination of any contract or instrument because of a change in the beneficial or legal ownership of any asset, right or liability; or (e) is to be regarded as causing any contract or instrument to be void or otherwise unenforceable; or (f) is to be regarded as frustrating any contract; or (g) releases any surety or other obligee wholly or in part from any obligation. __________________". s. 40 -- 142 of 152 -- Part 9—Amendments relating to VicRoads Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 135 Division 3—Southern and Eastern Integrated Transport Authority Act 2003 41 Amendment of section 3—Definitions In section 3 of the Southern and Eastern Integrated Transport Authority Act 2003— (a) the definition of EastLink Project is repealed; (b) for the definition of Project substitute— "Project means a Road Transport-Related Project;". 42 Repeal of section 4—The EastLink Project Section 4 of the Southern and Eastern Integrated Transport Authority Act 2003 is repealed. __________________ s. 41 See: Act No. 25/2003. Reprint No. 1 as at 15 May 2008 and amending Act Nos 4/2008 and 17/2009. LawToday: www. legislation. vic.gov.au -- 143 of 152 -- Part 10—Amendment of the Major Transport Projects Facilitation Act 2009 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 136 PART 10—AMENDMENT OF THE MAJOR TRANSPORT PROJECTS FACILITATION ACT 2009 43 Statute law revision (1) In section 3 of the Major Transport Projects Facilitation Act 2009, in the definition of rail infrastructure, for "At" substitute "Act". (2) In section 10(1)(b) of the Major Transport Projects Facilitation Act 2009, for "Part" substitute "Parts". (3) In section 57(1)(a) of the Major Transport Projects Facilitation Act 2009, after "relation" insert "to". (4) In section 57(3)(b) of the Major Transport Projects Facilitation Act 2009, for "35(1)(b)" substitute "35(b)". (5) In section 88(2)(b) of the Major Transport Projects Facilitation Act 2009, for "sections" substitute "section". (6) In section 95(1) of the Major Transport Projects Facilitation Act 2009— (a) omit "the Planning Minister"; and (b) for paragraphs (a) and (b) substitute— "(a) the Governor in Council declares a transport project to be a declared project to which this Act (other than Parts 3 and 8) applies; or (b) the Planning Minister makes an approval decision in relation to a declared project.". s. 43 See: Act No. 56/2009. Statute Book: www. legislation. vic.gov.au -- 144 of 152 -- Part 10—Amendment of the Major Transport Projects Facilitation Act 2009 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 137 (7) For section 95(2)(a) of the Major Transport Projects Facilitation Act 2009 substitute— "(a) in the case where the Governor in Council declares a transport project to be a declared project to which this Act (other than Parts 3 and 8) applies—the declared project to which that declaration relates;". (8) In section 114(a) of the Major Transport Projects Facilitation Act 2009, for "and" substitute "or". (9) In section 115(1) of the Major Transport Projects Facilitation Act 2009, for "113" substitute "114". (10) In section 167(3)(b) of the Major Transport Projects Facilitation Act 2009, after "Act" insert "1978". (11) In section 234(8)(b) of the Major Transport Projects Facilitation Act 2009 omit "be". (12) In Schedule 2 to the Major Transport Projects Facilitation Act 2009, for "Section 262" substitute "Section 264". __________________ s. 43 -- 145 of 152 -- Part 11—Amendment of the Crimes Act 1958 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 138 PART 11—AMENDMENT OF THE CRIMES ACT 1958 44 New section 317B inserted After the heading to Division 9 of Part I of the Crimes Act 1958 insert— "317B Interpretation (1) In this Division— drive, in relation to a motor vehicle, includes operate a vessel; motor vehicle includes vessel, whether or not the vessel is powered by a motor; operate, in relation to a vessel, means— (a) steer or navigate the vessel; or (b) direct the steering or navigation of the vessel or provide instructions as to the steering or navigation of the vessel; or (c) substantially change the movement or direction of the vessel; vessel has the same meaning as in the Marine Act 1988. (2) For the purposes of this Division— (a) a person may operate a vessel that is at anchor, made fast to the shore or aground; (b) a person does not operate a vessel solely because the person is in charge of the vessel.". s. 44 See: Act No. 6231. Reprint No. 21 as at 7 May 2009 and amending Act Nos 16/2004, 9/2008, 46/2008, 78/2008, 4/2009, 7/2009, 22/2009 and 25/2009.. LawToday: www. legislation. vic.gov.au -- 146 of 152 -- Part 11—Amendment of the Crimes Act 1958 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 139 45 Culpable driving causing death In section 318(6) of the Crimes Act 1958, after "Road Safety Act 1986" insert "or the Marine Act 1988". 46 New section 615 inserted in Crimes Act 1958 At the end of Part 7 of the Crimes Act 1958 insert— "615 Transitional provision—Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 (1) Division 9 of Part I as amended by sections 44 and 45 of the Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 applies only to offences alleged to have been committed on or after the commencement of sections 44 and 45 of that Act. (2) For the purposes of this section, if an offence is alleged to have been committed between two dates, one before and one after the commencement of sections 44 and 45 of the Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009, the offence is alleged to have been committed before that commencement.". 47 Evidentiary provisions in Marine Act 1988 (1) In section 27(2) of the Marine Act 1988— (a) in paragraph (d), for "corresponding law—" substitute "corresponding law; or"; and (b) after paragraph (d) insert— "(e) an offence against section 318(1) of the Crimes Act 1958 (whether in relation to a motor vehicle or a vessel) where the culpable driving is constituted by s. 45 -- 147 of 152 -- Part 11—Amendment of the Crimes Act 1958 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 140 behaviour referred to in section 318(2)(c) or (d) of that Act—". (2) In sections 32(2) and 33(1) of the Marine Act 1988, after "section 28(1)" insert "or on a trial or hearing for an offence against section 318(1) or 319(1) of the Crimes Act 1958 arising out of the operating of a vessel". 48 Cancellation of operator licence under Marine Act 1988 (1) In section 121(1) of the Marine Act 1988, for "If a court" substitute "Subject to subsection (1A), if a court". (2) After section 121(1) of the Marine Act 1988 insert— "(1A) On conviction for an offence against section 318(1), 319(1) or 319(1A) of the Crimes Act 1958 in connection with the operating of a vessel, the court must— (a) in the case of an offender who holds an operator licence, cancel that licence and disqualify the offender from obtaining an operator licence for the time (not being less than 6 months) that the court thinks fit; or (b) in the case of an offender who does not hold an operator licence, disqualify the offender from obtaining an operator licence for the time (not being less than 6 months) that the court thinks fit.". (3) In section 121(3) and (4) of the Marine Act 1988, after "(1)" insert "or (1A)". s. 48 -- 148 of 152 -- Part 11—Amendment of the Crimes Act 1958 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 141 49 Consequential amendments (1) In section 89(1)(c) and (d) of the Sentencing Act 1991, after "1958" insert "arising out of the driving of a motor vehicle (other than the operating of a vessel) by the offender". (2) In the Road Safety Act 1986— (a) in section 48(2)(f), after "1958" insert "(whether in relation to a motor vehicle or a vessel)"; (b) in section 57(2)(b), after "1958" insert "arising out of the driving of a motor vehicle but not the operating of a vessel"; (c) in section 57A(1), in paragraph (c) of the definition of prescribed legal proceeding, after "1958" insert "arising out of the driving of a motor vehicle but not the operating of a vessel"; (d) in section 57B(2)(c), after "1958" insert "arising out of the driving of a motor vehicle but not the operating of a vessel"; (e) in section 58(1)(b), after "1958" insert "arising out of the driving of a motor vehicle but not the operating of a vessel". (3) In section 3(1) of the Bus Safety Act 2009— (a) in the definition of tier 1 offence, in paragraph (f), after "1958" insert "(whether in relation to a motor vehicle or a vessel)"; (b) in the definition of tier 2 offence, in paragraphs (d) and (e), after "1958" insert "(whether in relation to a motor vehicle or a vessel)". s. 49 -- 149 of 152 -- Part 11—Amendment of the Crimes Act 1958 Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 142 (4) In the Transport Act 1983— (a) in section 86(1)— (i) in the definition of category 1 offence, in paragraph (cb), after "1958" insert "(whether in relation to a motor vehicle or a vessel)"; (ii) in the definition of category 2 offence, in paragraphs (cd) and (ce), after "1958" insert "(whether in relation to a motor vehicle or a vessel)"; (b) in section 130A(1)— (i) in the definition of tier 1 offence, in paragraph (cb), after "1958" insert "(whether in relation to a motor vehicle or a vessel)"; (ii) in the definition of tier 2 offence, in paragraphs (bb) and (bc), after "1958" insert "(whether in relation to a motor vehicle or a vessel)"; (c) in section 132E(c), after "1958" insert "(whether in relation to a motor vehicle or a vessel)". (5) In section 82(4A)(a) of the Accident Compensation Act 1985 omit ", in respect of driving a motor vehicle,". __________________ s. 49 -- 150 of 152 -- Part 12—Repeal Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 143 PART 12—REPEAL 50 Repeal of Act This Act is repealed on 1 January 2012. 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). ═══════════════ s. 50 -- 151 of 152 -- Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 No. 93 of 2009 144 ENDNOTES † Minister's second reading speech— Legislative Assembly: 11 November 2009 Legislative Council: 27 November 2009 The long title for the Bill for this Act was "A Bill for an Act to amend the Accident Towing Services Act 2007, the Crimes Act 1958, the EastLink Project Act 2004, the Major Transport Projects Facilitation Act 2009, the Marine Act 1988, the Melbourne City Link Act 1995, the Port Services Act 1995, the Road Management Act 2004, the Road Safety Act 1986, the Southern and Eastern Integrated Transport Authority Act 2003 and the Transport Act 1983 and for other purposes." Endnotes -- 152 of 152 --