Transport Legislation Miscellaneous Amendments Act 2009

i Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1 Purpose 1 2 Commencement 2 PART 2—MARINE ACT 1988 3 3 Amendments relating to the Australian Builders Plate Standard 3 4 New Divisions 4, 5, 6 and 7 inserted in Part 8 4 Division 4—Improvement notices 4 85AA Improvement notices 4 85AB Improvement notices—operation of vessel or closure of mooring or other physical structure associated with a vessel 7 85AC Contravention of improvement notice 7 85AD Amendment of improvement notices 8 85AE Cancellation of improvement notices 8 85AF Clearance certificates for improvement notices 9 85AG Proceedings for offences not affected by improvement notices or clearance certificates 9 Division 5—Prohibition notices 10 85AH Prohibition notice 10 85AI Contravention of prohibition notice 13 85AJ Amendment of prohibition notice 13 85AK Withdrawal of prohibition notices 14 85AL Certificates that matters that give rise to immediate risks to safety remedied 14 85AM Proceedings for offences not affected by prohibition notices or certificates issued under section 85AL 15 -- 1 of 72 -- Section Page ii Division 6—Review of decisions relating to improvement and prohibition notices 16 85AN Reviewable decisions 16 85AO Review by the Director 17 85AP Review by VCAT 19 Division 7—Sentencing orders in relation to relevant marine safety laws 20 85AQ Commercial benefits penalty order 20 85AR Supervisory intervention order 21 85AS Contravention of supervisory intervention order 25 85AT Exclusion orders 26 85AU Contravention of exclusion order 27 85AV Release on the giving of a safety undertaking 28 85AW Variation or breach of orders under section 85AV 29 5 Amendments consequential to amendments made by section 4 30 PART 3—PORT SERVICES ACT 1995 32 6 Amendment of section 13—Functions of Port of Melbourne Corporation 32 7 Amendment of section 17D—Functions of Port of Hastings Corporation 32 8 Amendment of section 21—Functions and powers of VRCA 32 9 New Part 6B—Port Development Strategy 33 PART 6B—PORT DEVELOPMENT STRATEGY 33 91J Definitions 33 91K Port Development Strategy 34 91L Consultation requirements 35 91M Guidelines 35 91N Ministerial directions 36 PART 4—ROAD MANAGEMENT ACT 2004 38 10 Infrastructure manager 38 11 Changes to Utilities' Infrastructure Reference Panel 39 12 Providers of public transport 40 13 Definition of relevant Minister 42 14 Principal object and management principles 44 15 New section 42A inserted—Specified roads 46 42A Specified roads 46 16 Amendment of section 48A—Definitions 48 -- 2 of 72 -- Section Page iii 17 Sections 48B and 48C substituted 49 48B Duty of responsible road authority, infrastructure manager or works manager in relation to works on or in immediate vicinity of rail infrastructure or rolling stock 49 18 New sections 48DA, 48DB and 48DC inserted 49 48DA Only one offence committed 49 48DB Duty of rail operator in relation to works on or in immediate vicinity of road infrastructure 50 48DC Exercising a power or performing a duty safely 50 19 Section 48E substituted and sections 48EA, 48EB and 48EC inserted 51 48E Only one offence committed 51 48EA Notification by responsible road authority, infrastructure manager or works manager 51 48EB Notification by works contractor 52 48EC Notification by rail operator 52 20 Amendments relating to notification requirements 53 21 Further amendments relating to notification requirements 55 22 Consequential amendment to section 48G 56 23 New Division 4B inserted in Part 4 56 Division 4B—Specific provisions relating to bus stop infrastructure and tram stop infrastructure 56 48H Definitions 56 48I Application of Division 57 48J Powers of Secretary 57 48K Offence in relation to removal, demolition or relocation 58 48L Resolution of disputes 59 48M Guidelines 59 48N Information to be provided by a municipal council 60 48O Consent of Director of Public Transport required to install, attach or affix rubbish bin or cigarette disposal unit 60 48P Power of Director of Public Transport to remove rubbish bin or cigarette disposal unit installed, attached or affixed without consent 60 24 Amendment of section 132—Regulations 61 PART 5—SOUTHERN AND EASTERN INTEGRATED TRANSPORT AUTHORITY ACT 2003 62 25 Amendment of section 3—Definitions 62 26 Amendment to heading to section 4 62 27 New section 4A inserted 62 4A Road Transport-Related Projects 62 -- 3 of 72 -- Section Page iv PART 6—TRANSPORT ACT 1983 63 28 New section 84AB inserted 63 84AB Chief Investigator may require persons to attend and answer questions 63 29 New section 85DA inserted 65 85DA Reports not admissible in evidence 65 PART 7—CONSEQUENTIAL AMENDMENTS TO OTHER ACTS 66 30 EastLink Project Act 2004 66 31 Melbourne City Link Act 1995 66 32 Road Safety Act 1986 66 PART 8—REPEAL OF AMENDING ACT 67 33 Repeal of amending Act 67 ═══════════════ ENDNOTES 68 -- 4 of 72 -- 1 Transport Legislation Miscellaneous Amendments Act 2009 † No. 17 of 2009 [Assented to 12 May 2009] The Parliament of Victoria enacts: PART 1—PRELIMINARY 1 Purpose The purpose of this Act is to— (a) make miscellaneous amendments to the Marine Act 1988, the Port Services Act 1995, the Road Management Act 2004 and the Southern and Eastern Integrated Transport Authority Act 2003 to facilitate the operation of those Acts; Victoria -- 5 of 72 -- Part 1—Preliminary Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 2 (b) amend the Transport Act 1983 in relation to the powers of the Chief Investigator to obtain information; (c) consequentially amend certain other Acts. 2 Commencement (1) This Act (except sections 3, 4, 5, 20 and 21) comes into operation on the day after the day on which it receives the Royal Assent. (2) Sections 4, 5, 20 and 21 come into operation on 1 July 2009. (3) Subject to subsection (4), section 3 comes into operation on a day to be proclaimed. (4) If section 3 does not come into operation before 1 January 2010, it comes into operation on that day. __________________ s. 2 -- 6 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 3 PART 2—MARINE ACT 1988 3 Amendments relating to the Australian Builders Plate Standard (1) In section 3(1) of the Marine Act 1988 after the definition of approved health professional insert— "Australian Builders Plate Standard means the "National Standard for the Australian Builders Plate for Recreational Boats" as prescribed by regulations made under the Fair Trading Act 1999;". (2) In section 13(1) of the Marine Act 1988 after "the regulations" insert "or the Australian Builders Plate Standard". (3) In section 77(1)(b) of the Marine Act 1988 after "the regulations" insert "or the Australian Builders Plate Standard". (4) After section 77(1)(b)(iii) of the Marine Act 1988 insert— "(iiia) the information required to be on a vessel; or". (5) In section 77(1)(d) of the Marine Act 1988 after "equipment" insert ", builders plate". (6) In section 82D(a) of the Marine Act 1988 after "the regulations" insert "and the Australian Builders Plate Standard". (7) After section 101A(1) of the Marine Act 1988 insert— "(1A) Subsection (1) does not prevent the disclosure or use of information obtained by the Director or a relevant person under this Act if the disclosure or use is made for the purposes of enabling— s. 3 See: Act No. 52/1988. Reprint No. 7 as at 12 December 2007. LawToday: www. legislation. vic.gov.au -- 7 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 4 (a) the Director of Consumer Affairs Victoria under the Fair Trading Act 1999; or (b) a person authorised by the Director of Consumer Affairs Victoria under the Fair Trading Act 1999 for the purposes of section 142A of that Act— to bring proceedings for an offence against the Fair Trading Act 1999, or regulations made under that Act, relating to the Australian Builders Plate Standard or to receive information relating to compliance with the Australian Builders Plate Standard.". (8) In Schedule 5 to the Marine Act 1988, in item 47 after "accompany applications" insert ", including prescribing information in respect of compliance with the Australian Builders Plate Standard". 4 New Divisions 4, 5, 6 and 7 inserted in Part 8 After Division 3 of Part 8 of the Marine Act 1988 insert— "Division 4—Improvement notices 85AA Improvement notices (1) An improvement notice may only be served on a relevant person if the relevant person is engaged in commercial marine operations. (2) The Director or an inspector may serve on a relevant person an improvement notice if the Director or inspector believes on reasonable grounds that the relevant person— (a) is contravening a provision of a relevant marine safety law; or s. 4 -- 8 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 5 (b) has contravened a provision of a relevant marine safety law in circumstances that make it likely the contravention will continue or be repeated; or (c) in the case of a relevant person who is the holder of a certificate, licence or registration— (i) is contravening a condition or restriction of the certificate, licence or registration; or (ii) has contravened a condition or restriction of the certificate, licence or registration in circumstances that make it likely the contravention will continue or be repeated. (3) The Director or an inspector may serve on the relevant person an improvement notice requiring the relevant person to remedy the contravention or likely contravention, or the matters or activities occasioning the contravention or likely contravention, within the period specified in the notice. (4) An inspector must, before serving an improvement notice under this section, inform the Director of his or her intention to do so. (5) An improvement notice must— (a) state the basis for the Director's or inspector's belief on which the service of the notice is based; (b) specify the provision of the relevant marine safety law in respect of which that belief is held; s. 4 -- 9 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 6 (c) specify a date (with or without a time) by which the relevant person is required to remedy the contravention or likely contravention or the matters or activities causing the contravention or likely contravention, that the Director or inspector considers is reasonable; (d) include information about obtaining a review of the decision to serve the notice; (e) set out the penalty for contravening the notice; (f) include a statement of the effect of section 85AG; (g) state that it is served under this section. (6) An improvement notice may include directions concerning the measures to be taken to remedy the contravention or likely contravention, or the matters or activities causing the contravention or likely contravention, to which the notice relates. (7) Without limiting subsection (6), an improvement notice may include a direction that if the relevant person has not remedied the contravention, likely contravention, matters or activities (as the case may be) by the date and time (if any) specified in the notice, an activity to which the notice relates is to cease until the Director or an inspector serves a clearance certificate under section 85AF. s. 4 -- 10 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 7 85AB Improvement notices—operation of vessel or closure of mooring or other physical structure associated with a vessel (1) Without limiting section 85AA, an improvement notice may require a relevant person to stop operating, or to close a mooring or other physical structure associated with, a vessel— (a) that the relevant person owns or controls; or (b) for which the relevant person is responsible. (2) If an improvement notice requires a relevant person to stop operating, or to close a mooring or other physical structure associated with, a vessel, the relevant person must publish a notice of the required stoppage or closure in a newspaper circulating— (a) generally in the State; and (b) in the area in which the vessel is operated or the mooring or other physical structure is located. 85AC Contravention of improvement notice (1) A relevant person on whom an improvement notice has been served must not refuse or fail to comply with the notice unless the relevant person has a reasonable excuse. Penalty: In the case of a natural person, 500 penalty units; In the case of a body corporate, 2500 penalty units. s. 4 -- 11 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 8 (2) An offence against subsection (1) is an indictable offence. Note However, the offence may be heard and determined summarily (see section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989). 85AD Amendment of improvement notices (1) An improvement notice served by the Director may be amended by the Director. (2) An improvement notice served by an inspector may be amended by any inspector or the Director. (3) An amendment of an improvement notice is effected by service on the relevant person affected of a notice stating the terms of the amendment. (4) An amendment of an improvement notice is ineffective if it purports to deal with a contravention of a different provision of a relevant marine safety law from that dealt with in the improvement notice as first served. (5) A notice of an amendment of an improvement notice must— (a) state the reasons for the amendment; (b) include information about obtaining a review of the decision to amend the notice; (c) state that it is served under this section. 85AE Cancellation of improvement notices (1) An improvement notice served on a relevant person may only be cancelled by the Director. s. 4 -- 12 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 9 (2) Notice of cancellation of an improvement notice is required to be served on the relevant person affected. 85AF Clearance certificates for improvement notices (1) This section applies if the Director or an inspector is satisfied that a relevant person served with an improvement notice has complied with all the requirements of, or a requirement of, that notice. (2) The Director or an inspector must serve a clearance certificate on the relevant person to the effect that (as the case requires)— (a) all of the requirements of the improvement notice have been complied with; or (b) the specific requirement of the improvement notice has been complied with. (3) The clearance certificate must be served as soon as practicable after the Director or an inspector is so satisfied. (4) A requirement of the improvement notice to which the clearance certificate relates ceases to be operative on receipt by the relevant person of that certificate. 85AG Proceedings for offences not affected by improvement notices or clearance certificates (1) The service, amendment or cancellation of an improvement notice does not affect any proceedings for an offence against a relevant marine safety law in connection with any matter in respect of which the improvement notice was served. s. 4 -- 13 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 10 (2) The issue of a clearance certificate under section 85AF in respect of an improvement notice does not affect any proceedings for an offence against a relevant marine safety law in connection with any matter in respect of which the improvement notice was served. Division 5—Prohibition notices 85AH Prohibition notice (1) A prohibition notice may only be served on a person who has or appears to have control over an activity to which this section applies occurring during commercial marine operations. (2) This section applies if— (a) an activity is occurring on, or in connection with the operation of, a vessel, that involves or will involve an immediate risk to the safety of a person; or (b) an activity is occurring at a place where vessels are operated, stored, moored, berthed or placed that involves or will involve an immediate risk to the safety of a person; or (c) an activity may occur at a place where vessels are operated, stored, moored, berthed or placed that, if it occurs, will involve an immediate risk to the safety of a person; or (d) an activity may occur at, on, or in the immediate vicinity of, infrastructure relating to the operation, storage, mooring, berthing or placement of a vessel, or vessels, that, if it occurs, will s. 4 -- 14 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 11 involve an immediate risk to the safety of the operation of the vessel. (3) If the Director or an inspector believes on reasonable grounds that an activity referred to in subsection (2) is occurring or may occur, the Director or inspector may serve on a person who has or appears to have control over the activity a prohibition notice prohibiting the carrying out of the activity, or the carrying out of the activity in a specified way, until the Director or inspector serves a certificate under section 85AL. (4) An inspector must, before serving a prohibition notice under this section, inform the Director of his or her intention to do so. (5) A prohibition notice must— (a) state the basis for the Director's or inspector's belief on which the service of the notice is based; (b) specify the activity which the Director or inspector believes involves or will involve the risk and the matters which give or will give rise to the risk; (c) if the Director or inspector believes that the activity involves a contravention or likely contravention of a provision of a relevant marine safety law, specify that provision and state the basis for that belief; (d) set out the penalty for contravening the notice; (e) include information about obtaining a review of the decision to serve the notice; s. 4 -- 15 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 12 (f) include a statement of the effect of section 85AM; (g) state that it is served under this section. (6) A prohibition notice may include directions on the measures to be taken to remedy the risk, activities or matters to which the notice relates, or the contravention or likely contravention mentioned in subsection (5)(c). (7) A prohibition notice that prohibits the carrying out of an activity in a specified way may do so by specifying one or more of the following— (a) a vessel is not to be operated; (b) a place where vessels are operated, stored, moored, berthed or placed, at which the activity is not to be carried out; (c) infrastructure or part of infrastructure relating to the operation, storage, mooring, berthing or placement of a vessel or a place in the immediate vicinity of infrastructure or vessels at which the activity is not to be carried out; (d) any thing that is not to be used in connection with the activity; (e) any procedure that is not to be followed in connection with the activity. s. 4 -- 16 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 13 85AI Contravention of prohibition notice (1) A person on whom a prohibition notice is served must not refuse or fail to comply with the notice unless the person has a reasonable excuse. Penalty: In the case of a natural person, 500 penalty units; In the case of a body corporate, 2500 penalty units. (2) An offence against subsection (1) is an indictable offence. Note However, the offence may be heard and determined summarily (see section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989). 85AJ Amendment of prohibition notice (1) A prohibition notice served by the Director may be amended by the Director. (2) A prohibition notice served by an inspector may be amended by any inspector or the Director. (3) An amendment of a prohibition notice served is effected by service on the relevant person affected of a notice stating the terms of the amendment. (4) An amendment of a prohibition notice served is ineffective if it purports to prohibit the carrying out of an activity that is different from the activity prohibited by the prohibition notice as first served. s. 4 -- 17 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 14 (5) A notice of an amendment of a prohibition notice must— (a) state the reasons for the amendment; (b) include information about obtaining a review of the decision to amend the notice; (c) state that it is served under this section. 85AK Withdrawal of prohibition notices (1) A prohibition notice served on a relevant person may only be withdrawn by the Director. (2) Notice of the withdrawal of a prohibition notice is required to be served on the relevant person affected. 85AL Certificates that matters that give rise to immediate risks to safety remedied (1) This section applies if the Director or an inspector is satisfied that a relevant person served with a prohibition notice has remedied all of the matters or a matter— (a) that gave, or will give, rise to an immediate risk to the safety of a person or the operation of a vessel because of the carrying out of the activity; and (b) specified in the prohibition notice. (2) The Director or an inspector must serve a certificate on the relevant person to the effect that (as the case requires)— (a) all of the matters or the matter that gave rise to an immediate risk to the safety of a person or the operation of a vessel because of the activity specified in the prohibition notice have been remedied; or s. 4 -- 18 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 15 (b) all of the matters or the matter that could have given rise to an immediate risk to the safety of a person or the operation of a vessel because of the activity specified in the prohibition notice have been remedied. (3) The certificate must be served as soon as practicable after the Director or inspector is so satisfied. (4) A matter raised in the prohibition notice that has been remedied to the satisfaction of the Director or inspector, and to which the certificate relates, ceases to be operative on receipt by the relevant person of that certificate. 85AM Proceedings for offences not affected by prohibition notices or certificates issued under section 85AL (1) The service, amendment or withdrawal of a prohibition notice does not affect any proceedings for an offence against a relevant marine safety law in connection with any matter in respect of which the prohibition notice was served. (2) The issue of a certificate under section 85AL in respect of a prohibition notice does not affect any proceedings for an offence against a relevant marine safety law in connection with any matter in respect of which the prohibition notice was served. s. 4 -- 19 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 16 Division 6—Review of decisions relating to improvement and prohibition notices 85AN Reviewable decisions (1) The following table sets out— (a) decisions made under Divisions 4 and 5 that are reviewable in accordance with this Division (reviewable decisions); and (b) who is eligible to apply for review of a reviewable decision (the eligible person in relation to the reviewable decision). (2) To avoid doubt, sections 4 and 5 of the Victorian Civil and Administrative Tribunal Act 1998 apply for the purposes of this Act. Note Under section 4 of that Act, a person makes a decision if the person refuses to make a decision or an instrument, imposes a condition or restriction or does or refuses to do any other act or thing. Section 5 of that Act sets out when a person's interests are affected by a decision. Item Provision under which reviewable decision is made Eligible person in relation to reviewable decision 1 Section 85AA (service of improvement notice) The person on whom the improvement notice is served. 2 Section 85AD (amendment of improvement notice) The person served with the improvement notice that is being amended. s. 4 -- 20 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 17 Item Provision under which reviewable decision is made Eligible person in relation to reviewable decision 3 Section 85AF (clearance certificate to the effect that all or any specified requirements of improvement notice have been complied with) The person on whom the improvement notice was served. 4 Section 85AH (service of prohibition notice) The person on whom the prohibition notice is served. 5 Section 85AJ (amendment of prohibition notice) The person served with the prohibition notice that is being amended. 6 Section 85AL (certificate that matters have been remedied) The person on whom the prohibition notice was served. 85AO Review by the Director (1) An eligible person may, in relation to a reviewable decision, other than a decision made by the Director, apply to the Director for review of the decision within— (a) 28 days after the day on which the decision first came to the eligible person's notice; or (b) such longer period as the Director allows. (2) The application must be in the form approved in writing by the Director. s. 4 -- 21 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 18 (3) If an application is made to the Director in accordance with this section, the Director must make a decision— (a) to affirm or vary the reviewable decision; or (b) to set aside the reviewable decision and substitute another decision that the Director considers appropriate. (4) The Director must give a written notice to the applicant setting out— (a) the Director's decision under subsection (3) and the reasons for the decision; and (b) the findings on material questions of fact that led to the decision, referring to the evidence or other material on which those findings were based— and must do so within 28 days after the application is made or, if the reviewable decision was made under section 85AA(5) or 85AH(5) within 7 days after the application is made. (5) If the Director has not notified an applicant of a decision in accordance with subsection (4), the Director is taken to have made a decision to affirm the reviewable decision. (6) An application under this section does not affect the operation of the reviewable decision or prevent the taking of any action to implement it unless the Director, on his or her own initiative or on the application of the applicant for review, stays the operation of the decision pending the determination of the review. s. 4 -- 22 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 19 (7) The Director must make a decision on an application for a stay within 24 hours after the making of the application. (8) If the Director has not made a decision in accordance with subsection (7), the Director is taken to have made a decision to grant a stay. (9) The Director may attach any conditions to a stay of the operation of a reviewable decision that he or she considers appropriate. 85AP Review by VCAT (1) A person may apply to VCAT for review of— (a) a reviewable decision made by the Director; or (b) a decision made, or taken to have been made, by the Director under section 85AO in respect of a reviewable decision, including a decision concerning a stay of the operation of the reviewable decision— if the person is an eligible person in relation to the reviewable decision. (2) The application must be made— (a) within 28 days after the day on which the decision first came to the applicant's notice; or (b) if the Director is required by the Victorian Civil and Administrative Tribunal Act 1998 to give the applicant a statement of reasons, within 28 days after the day on which the applicant is given the statement— whichever period ends last. s. 4 -- 23 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 20 Division 7—Sentencing orders in relation to relevant marine safety laws 85AQ Commercial benefits penalty order (1) A court that finds a person guilty of an offence against a relevant marine safety law arising out of commercial marine operations may, on the application of the prosecutor or the Director, make an order under this section. (2) The court may make a commercial benefits penalty order requiring the person to pay, as a fine, an amount not exceeding 3 times the amount estimated by the court to be the gross commercial benefit that— (a) was obtained or obtainable, by the person or by an associate of the person, from the commission of the offence; and (b) in the case of a journey that was interrupted or not commenced because of action taken by the Director or an inspector in connection with the commission of the offence, would have been obtained or obtainable, by the person or by an associate of the person, from the commission of the offence had the journey been completed. (3) In estimating the gross commercial benefit that was or would have been obtained or obtainable from the commission of the offence, the court may take into account— (a) benefits of any kind, whether monetary or otherwise; and s. 4 -- 24 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 21 (b) monetary savings or a reduction in any operating or capital expenditure of any kind achieved because of the commission of the offence; and (c) any other matters that it considers relevant, including (for example)— (i) the value per tonne or per kilometre of the carriage of the goods involved in the offence as freight; and (ii) the distance over which any such goods were or were to be carried. (4) However, in estimating the gross commercial benefit that was or would have been obtained or obtainable from the commission of the offence, the court is required to disregard any costs, expenses or liabilities incurred by the person or by an associate of the person. (5) Nothing in this section prevents the court from ordering payment of an amount that is— (a) less than 3 times the estimated gross commercial benefit; or (b) less than the estimated gross commercial benefit. 85AR Supervisory intervention order (1) A court that finds a person guilty of an offence against a relevant marine safety law arising out of commercial marine operations may, on the application of the prosecutor or the Director, if the court considers the person to be a systematic or persistent offender against a relevant marine safety law, make an order under this section. s. 4 -- 25 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 22 (2) The court may make a supervisory intervention order requiring the person (at the person's own expense and for a specified period not exceeding one year) to do all or any of the following— (a) to do specified things that the court considers will improve the person's compliance with relevant marine safety law or specified aspects of a relevant marine safety law, including (for example) the following— (i) appointing or removing staff to or from particular activities or positions; (ii) training and supervising staff; (iii) obtaining expert advice as to maintaining appropriate compliance; (iv) installing, monitoring, compliance, managerial or operational equipment; (v) implementing, monitoring, compliance, managerial or operational practices, systems or procedures; (b) to conduct specified monitoring, compliance, managerial or operational practices, systems or procedures subject to the direction of the Director or a person nominated by the Director; (c) to furnish compliance reports to the Director or the court or both as specified in the order; s. 4 -- 26 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 23 (d) to appoint a person to have responsibilities— (i) to assist the person in improving compliance with a relevant marine safety law or specified aspects of a relevant marine safety law; and (ii) to monitor the person's performance in complying with a relevant marine safety law or specified aspects of a relevant marine safety law and in complying with the requirements of the order; and (iii) to furnish compliance reports to the Director or the court or both as specified in the order. (3) The court may specify matters that are to be dealt with in compliance reports and the form, manner and frequency in which compliance reports are to be prepared and furnished. (4) The court may require that compliance reports or aspects of compliance reports be made public, and may specify the form, manner and frequency in which they are to be made public. (5) The court may only make a supervisory intervention order if it is satisfied that the order is capable of improving the person's ability or willingness to comply with the relevant marine safety law, having regard to— (a) the offences against a relevant marine safety law of which the person has been previously found guilty; and s. 4 -- 27 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 24 (b) the offences against a relevant marine safety law for which the person has been proceeded against by way of unwithdrawn infringement notices; and (c) any other offences or other matters that the court considers to be relevant to the conduct of the person in connection with the safety of marine operations. (6) The order may direct that any other penalty or sanction imposed for the offence by the court is suspended until the court determines that there has been a substantial failure to comply with the order. (7) A court that has power to make supervisory intervention orders may revoke or amend a supervisory intervention order on the application of— (a) the Director; or (b) the person in respect of whom the order was made, but in that case only if the court is satisfied that there has been a change of circumstances warranting revocation or amendment. (8) The court may have regard to any offence committed by the person against a relevant marine safety law before the commencement of section 4 of the Transport Legislation Miscellaneous Amendments Act 2009 for the purposes of— (a) considering whether a person is a systematic or persistent offender against a relevant marine safety law; and (b) having regard to offences of which the person has been previously found guilty under subsection (5)(a). s. 4 -- 28 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 25 (9) In this section, compliance report, in relation to a person in respect of whom a supervisory intervention order is made, means a report relating to— (a) the performance of the person in complying with— (i) a relevant marine safety law or specified aspects of a relevant marine safety law specified in the order; and (ii) the requirements of the order; and (b) without limiting the above— (i) things done by the person to ensure that any failure by the person to comply with the relevant marine safety law or the specified aspects of the relevant marine safety law does not continue; and (ii) the results of those things having been done. 85AS Contravention of supervisory intervention order A person who is subject to a requirement of a supervisory intervention order must not engage in conduct that results in contravention of the requirement. Penalty: In the case of a natural person, 120 penalty units; In the case of a body corporate, 600 penalty units. s. 4 -- 29 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 26 85AT Exclusion orders (1) A court that finds a person guilty of an offence against a relevant marine safety law arising out of commercial marine operations may, on the application of the prosecutor or the Director, if the court considers the person to be a systematic or persistent offender against the relevant marine safety laws, make an order under this section. (2) For the purpose of restricting opportunities for the person to commit or be involved in the commission of further offences against relevant marine safety laws, the court may, if it considers it appropriate to do so, make an exclusion order prohibiting the person, for a specified period, from— (a) operating a vessel on State waters; or (b) managing infrastructure relating to the operation, storage, mooring, berthing or placement of a vessel; or (c) being involved in managing infrastructure relating to the operation, storage, mooring, berthing or placement of a vessel that is in the State or operating a vessel in the State except as a pilot. (3) The court may only make an order under this section if it is satisfied that the person should not continue the things the subject of the proposed order and that a supervisory intervention order under section 85AR is not appropriate, having regard to— (a) the offences against a relevant marine safety law of which the person has previously been found guilty; and s. 4 -- 30 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 27 (b) any other offences or other matters that the court considers to be relevant to the conduct of the person in connection with the safety of marine operations. (4) A court that has power to make an exclusion order may revoke or amend the exclusion order on the application of— (a) the Director; or (b) the person in respect of whom the order was made, but in that case only if the court is satisfied that there has been a change of circumstances warranting the revocation or amendment. (5) The court may have regard to any offence committed by the person against a relevant marine safety law before the commencement of section 4 of the Transport Legislation Miscellaneous Amendments Act 2009 for the purposes of— (a) considering whether a person is a systematic or persistent offender against a relevant marine safety law; and (b) having regard to offences of which the person has been previously found guilty under subsection (3)(a). 85AU Contravention of exclusion order A person who is subject to an exclusion order must not engage in conduct that results in a contravention of the order. Penalty: In the case of a natural person, 120 penalty units; In the case of a body corporate, 600 penalty units. s. 4 -- 31 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 28 85AV Release on the giving of a safety undertaking (1) If a court convicts a person or finds a person guilty of an offence against a relevant marine safety law arising out of commercial marine operations, the court may (with or without recording a conviction) adjourn the proceeding for a period of up to 2 years and make an order for the release of the offender on the offender giving an undertaking with specified conditions. (2) An undertaking must specify the following conditions— (a) that the offender appears before the court if called on to do so during the period of the adjournment and, if the court so specifies, at the time to which the further hearing is adjourned; (b) that the offender does not commit, during the period of the adjournment, any offence against a relevant marine safety law; (c) that the offender observes any special conditions imposed by the court. (3) Without limiting subsection (2)(c), the court may impose on an offender special conditions that the offender— (a) engage a consultant, who is approved in writing by the Director, to advise on or assist with safety matters; and (b) develop and implement a systematic approach to managing risks to safety that arise or may arise in the conduct of the offender's undertaking; and s. 4 -- 32 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 29 (c) arrange for the carrying out of an audit of the offender's undertaking in relation to safety by an independent person who is approved in writing by the Director. (4) An offender who has given an undertaking under this section may be called on to appear before the court— (a) by order of the court; or (b) by notice issued by the proper officer (within the meaning of section 72(4) of the Sentencing Act 1991) of the court. (5) An order or notice under subsection (4) must be served on the offender not less than 4 days before the time specified in it for the appearance. (6) If the court is satisfied at the time to which a further hearing of a proceeding is adjourned that the offender has observed the conditions of the undertaking, it must discharge the offender without any further hearing of the proceeding. (7) The court may make an order under this section in relation to an offender in addition to or instead of— (a) imposing a penalty on the offender; or (b) making any other order that the court may make in relation to the offence. 85AW Variation or breach of orders under section 85AV Sections 78 and 79 of the Sentencing Act 1991 (and any definitions in that Act of terms used in those sections) apply to an order under section 85AV for the release of an offender as though they were incorporated into this Act and as though— s. 4 -- 33 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 30 (a) a reference to Subdivision (2) or (3) were instead a reference to section 85AV; and (b) a reference to a prescribed person, a member of a prescribed class of persons, the informant or a police prosecutor were instead a reference to the Director; and (c) the reference in section 79(4) of the Sentencing Act 1991 to a level 10 fine were instead a reference to a fine not exceeding 10 penalty units for a natural person or 50 penalty units for a body corporate; and (d) any other necessary modifications were made.". 5 Amendments consequential to amendments made by section 4 In section 3(1) of the Marine Act 1988 insert the following definitions— "commercial marine operations means any activity in connection with the operation of a fishing vessel, government vessel or trading vessel; relevant marine safety law means— (a) a provision of this Act or of any regulations made under this Act; (b) a provision of the Port Services Act 1995 or any regulations made under that Act; s. 5 -- 34 of 72 -- Part 2—Marine Act 1988 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 31 (c) section 37 of the Pollution of Waters by Oil and Noxious Substances Act 1986 or any regulations made for the purposes of that section;". __________________ s. 5 -- 35 of 72 -- Part 3—Port Services Act 1995 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 32 PART 3—PORT SERVICES ACT 1995 6 Amendment of section 13—Functions of Port of Melbourne Corporation After section 13(2)(d) of the Port Services Act 1995 insert— "(da) has regard to the benefits of increased competition between persons and bodies that provide services related to the operation of the port of Melbourne; and". 7 Amendment of section 17D—Functions of Port of Hastings Corporation After section 17D(2)(d) of the Port Services Act 1995 insert— "(da) has regard to the benefits of increased competition between persons and bodies that provide services related to the operation of the port of Hastings; and". 8 Amendment of section 21—Functions and powers of VRCA After section 21(7)(d) of the Port Services Act 1995 insert— "(da) has regard to the benefits of increased competition between persons and bodies that provide services related to the operation of the area where it is carrying out the functions; and". s. 6 See: Act No. 82/1995. Reprint No. 4 as at 1 July 2004 and amending Act Nos 75/2004, 107/2004, 108/2004, 110/2004, 80/2006, 63/2007 and 12/2008. LawToday: www. legislation. vic.gov.au -- 36 of 72 -- Part 3—Port Services Act 1995 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 33 9 New Part 6B—Port Development Strategy After Part 6A of the Port Services Act 1995 insert— "PART 6B—PORT DEVELOPMENT STRATEGY 91J Definitions In this Part— direction means a direction issued by the Minister under section 91N; guidelines means guidelines made under section 91M; Port Development Strategy means a Port Development Strategy for each commercial trading port prepared under this Part; port land owner means— (a) the owner of the land where the relevant commercial trading port is located; or (b) if there is more than one owner of the land where the relevant commercial trading port is located, the owner of the land that comprises the largest single area of land on which the relevant commercial trading port is located; relevant port authority means— (a) in the case of the port of Melbourne, the Port of Melbourne Corporation; s. 9 -- 37 of 72 -- Part 3—Port Services Act 1995 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 34 (b) in the case of the port of Hastings, the Port of Hastings Corporation; (c) in the case of any other commercial trading port, the port land owner. 91K Port Development Strategy (1) The relevant port authority must at intervals of 4 years prepare a Port Development Strategy in accordance with this Part. (2) A Port Development Strategy must include— (a) projections of trade through the commercial trading port; (b) current and projected land use requirements, including transitional land uses designed to protect the port from constraints on efficient operations and mitigate adverse impacts of port operations on adjacent uses; (c) current and projected infrastructure requirements for land and water in the commercial trading port; (d) current and projected transport infrastructure requirements for land and water in the commercial trading port; (e) any other matters specified in any guidelines. (3) The first Port Development Strategy must be prepared by the date specified in the guidelines. (4) A Port Development Strategy must be prepared and submitted to the Minister in accordance with the guidelines. s. 9 -- 38 of 72 -- Part 3—Port Services Act 1995 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 35 91L Consultation requirements (1) If a commercial trading port is located on land owned by different owners, the relevant port authority must consult with all the other land owners in preparing the Port Development Strategy. (2) If the port waters of a commercial trading port are managed by a channel operator who is not the relevant port authority, the relevant port authority must consult with the channel operator in preparing the Port Development Strategy. 91M Guidelines (1) The Minister may issue guidelines about the following matters in relation to a Port Development Strategy— (a) the form; (b) the content; (c) the method and process for preparation; (d) processes to enable tenants, licensees and service providers in the port to be involved in the preparation; (e) processes for consultation with people affected; (f) publication and availability. (2) The guidelines must be published in the Government Gazette and made available for inspection free of charge at the office of the Minister. s. 9 -- 39 of 72 -- Part 3—Port Services Act 1995 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 36 91N Ministerial directions (1) If a relevant port authority fails to prepare and submit a Port Development Strategy in accordance with section 91K, the Minister may, by notice in writing to the relevant port authority, direct that a Port Development Strategy for the relevant commercial trading port must be prepared and submitted within the time fixed by the Minister in the direction being at least 3 months after the date of the direction. (2) A relevant port authority must comply with a direction given to the relevant port authority under subsection (1). Penalty: 240 penalty units. (3) If the Minister is of the opinion that the Port Development Strategy submitted by a relevant port authority— (a) has not been prepared in accordance with the guidelines; or (b) does not include the matters referred to in section 91K— the Minister may, by notice in writing to the relevant port authority, direct the relevant port authority to amend and resubmit a Port Development Strategy within the time fixed by the Minister in the direction being at least 3 months after the date of the direction. s. 9 -- 40 of 72 -- Part 3—Port Services Act 1995 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 37 (4) A relevant port authority must comply with a direction given to the relevant port authority under subsection (3). Penalty: 240 penalty units. __________________". __________________ s. 9 -- 41 of 72 -- Part 4—Road Management Act 2004 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 38 PART 4—ROAD MANAGEMENT ACT 2004 10 Infrastructure manager (1) In section 3(1) of the Road Management Act 2004, in the definition of infrastructure manager, in paragraph (b), before "in relation" insert "subject to subsection (5),". (2) After section 3(4) of the Road Management Act 2004 insert— "(5) A reference to an infrastructure manager in section 5, 48, 48A, 48C, 64, 101, 104 or 110 or Schedule 7, or any regulations made under this Act or a Code of Practice in relation to any non-road infrastructure does not include a reference to the Director of Public Transport or Victorian Rail Track unless the Director of Public Transport or Victorian Rail Track (as the case may be)— (a) is directly responsible for the provision, installation, maintenance or operation of that non-road infrastructure; or (b) has not delegated responsibility for those matters to another infrastructure manager; or (c) has not entered into a contract with another infrastructure manager under which responsibility for those matters is accepted by that infrastructure manager.". s. 10 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 and 74/2007. LawToday: www. legislation. vic.gov.au -- 42 of 72 -- Part 4—Road Management Act 2004 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 39 11 Changes to Utilities' Infrastructure Reference Panel (1) In section 3(1) of the Road Management Act 2004— (a) after the definition of infrastructure manager insert— "Infrastructure Reference Panel means the Panel established under section 31;"; (b) the definition of Utilities' Infrastructure Reference Panel is repealed. (2) In section 28(3) of the Road Management Act 2004 for "Utilities' Infrastructure Reference Panel" substitute "Infrastructure Reference Panel". (3) In sections 31 and 32 of the Road Management Act 2004 for "Utilities' Infrastructure Reference Panel" (wherever occurring) substitute "Infrastructure Reference Panel". (4) In section 31(2) of the Road Management Act 2004 for "15" substitute "16". (5) After section 31(2)(j) of the Road Management Act 2004 insert— "(ja) one is a nominee of the Minister administering the Public Transport Competition Act 1995;". (6) After section 31(5) of the Road Management Act 2004 insert— "(6) The Infrastructure Reference Panel is deemed to be the same body as the Utilities' Infrastructure Reference Panel was before the commencement of section 11 of the Transport Legislation Miscellaneous Amendments Act 2009. s. 11 -- 43 of 72 -- Part 4—Road Management Act 2004 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 40 (7) Any reference to the Utilities' Infrastructure Reference Panel in any Act or in any proclamation, Order in Council, rule, regulation, order, agreement, instrument, deed or other document, so far as it relates to any period after the commencement of section 11 of the Transport Legislation Miscellaneous Amendments Act 2009 and if not inconsistent with the context or subject-matter, must be construed as a reference to the Infrastructure Reference Panel.". (7) In section 132(5) of the Road Management Act 2004 for "Utilities' Infrastructure Reference Panel" substitute "Infrastructure Reference Panel". 12 Providers of public transport (1) In section 3(1) of the Road Management Act 2004— (a) in the Examples to the definition of non- road infrastructure, after "utilities" insert "or providers of public transport"; (b) in the definition of road management function, in paragraph (b) after "utility," insert "provider of public transport,"; (c) in the definition of utility paragraph (c) is repealed. (2) In section 4(2)(d) of the Road Management Act 2004 after "utility" (where twice occurring) insert "and public transport". (3) In section 15(1) of the Road Management Act 2004— (a) for "or a utility" substitute ", a utility or a provider of public transport"; s. 12 -- 44 of 72 -- Part 4—Road Management Act 2004 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 41 (b) for "or to the utility" substitute ", the utility or the provider of public transport". (4) In section 15(1A) of the Road Management Act 2004— (a) after "a utility" insert "or a provider of public transport"; (b) after "the utility" insert "or the provider of public transport". (5) In section 20(2)(e) of the Road Management Act 2004 after "utility" insert "and public transport". (6) After section 28(3) of the Road Management Act 2004 insert— "(3A) Before the Minister makes a Code of Practice which includes any matter or thing relating to public transport infrastructure or related works, the Minister must consult with the Minister for Public Transport and with the Infrastructure Reference Panel.". (7) In section 32 of the Road Management Act 2004— (a) in paragraph (a) after "utilities" insert "and providers of public transport"; (b) in paragraph (b) after "utilities" insert ", providers of public transport". (8) In section 34(1)(d) of the Road Management Act 2004 after "utility" insert "or public transport". (9) In section 38(1)(i) of the Road Management Act 2004 after "utilities" insert ", providers of public transport". (10) In section 38(2)(e) of the Road Management Act 2004 after "utility" insert "and public transport". s. 12 -- 45 of 72 -- Part 4—Road Management Act 2004 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 42 (11) In the Example to section 40(5) of the Road Management Act 2004 after "utility" insert ", provider of public transport". (12) In section 63(2)(ba) of the Road Management Act 2004 after "Utility" insert "within the meaning of section 3(1) of the EastLink Project Act 2004". (13) In Schedule 7 to the Road Management Act 2004, in the Example to clause 6, for "or a utility" substitute ", a utility or a provider of public transport". (14) In Schedule 7 to the Road Management Act 2004, in the Example to clause 16(5), after "utility" insert "or a provider of public transport". 13 Definition of relevant Minister (1) In section 3(1) of the Road Management Act 2004— (a) after the definition of regulations insert— "relevant Minister means— (a) the Minister administering this Act, if the coordinating road authority is VicRoads; (b) the Minister administering the Local Government Act 1989, if the coordinating road authority is a municipal council; (c) subject to paragraph (b), the Minister administering the Crown Land (Reserves) Act 1978, if the coordinating road authority has responsibility for roads under that Act; s. 13 -- 46 of 72 -- Part 4—Road Management Act 2004 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 43 (d) the Minister administering the Forests Act 1958, if the coordinating road authority has responsibility for roads under that Act; (e) the Minister administering the Land Act 1958, if the coordinating road authority has responsibility for roads under that Act; (f) the Minister administering the National Parks Act 1975, if the coordinating road authority has responsibility for roads under that Act; (g) if paragraphs (a) to (f) do not apply, the Minister administering the Act under which the road authority has responsibility for roads;"; (b) the definition of relevant road Minister is repealed. (2) After section 3(3) of the Road Management Act 2004 insert— "(3A) A reference in any Regulations or a Code of Practice to the relevant road Minister is to be construed as a reference to the relevant Minister.". (3) In the Road Management Act 2004— (a) in sections 12(11)(b), 21, 22(1), 22(2), 39(6), 103(a), 117(2), 125(1), 125(2), 125(3) and 132(7)(d) for "relevant road Minister" (wherever occurring) substitute "relevant Minister"; s. 13 -- 47 of 72 -- Part 4—Road Management Act 2004 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 44 (b) in sections 28(2) and 125(1) for "relevant road Ministers" substitute "relevant Ministers"; (c) in clause 1(i) of Schedule 1 for "relevant road Minister" substitute "relevant Minister"; (d) in clause 9(5) of Schedule 5 for "relevant Ministers" substitute "administering Ministers"; (e) in clause 9(10) of Schedule 5 for "relevant Ministers" substitute "administering Ministers". 14 Principal object and management principles (1) After section 20(1) of the Road Management Act 2004 insert— "(1A) In giving effect to the principal object of road management, the road network is to be managed to reflect the priorities of different modes of transport having regard to the intended function or functions of different parts of the road network. (1B) Subject to subsection (1C), priority is to be given to the following modes of transport in respect of the specified roads for that mode of transport— (a) trams on specified tram roads; (b) buses on specified bus roads; (c) bicycles on specified bicycle roads; (d) pedestrians on specified pedestrian roads; (e) freight on specified freight roads; s. 14 -- 48 of 72 -- Part 4—Road Management Act 2004 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 45 (f) any other mode of transport on specified roads for that mode of transport. (1C) Subsection (1B) has effect— (a) without limiting the generality of subsection (1A); and (b) to the extent that it is reasonably practicable having regard to the works and infrastructure management principles.". (2) In section 3(1) of the Road Management Act 2004, after the definition of shoulder insert— "specified bicycle road means a road or part of a road which is specified under section 42A to be a specified bicycle road; specified bus road means a road or part of a road which is specified under section 42A to be a specified bus road; specified freight road means a road or part of a road which is specified under section 42A to be a specified freight road; specified pedestrian road means a road or part of a road which is specified under section 42A to be a specified pedestrian road; specified road means a road or part of a road which is specified under section 42A to be a specified road in respect of which a mode of transport is to have priority; specified tram road means a road or part of a road which is specified under section 42A to be a specified tram road;". s. 14 -- 49 of 72 -- Part 4—Road Management Act 2004 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 46 (3) After section 4(2)(c) of the Road Management Act 2004 insert— "(ca) provides for the assigning of priority to different modes of transport on specified roads;". (4) After section 4(2)(e) of the Road Management Act 2004 insert— "(ea) provides for the keeping of a register of specified roads and the transport modes that have priority in respect of those specified roads;". (5) After section 20(2)(d) of the Road Management Act 2004 insert— "(da) the priority of different modes of transport on specified roads;". (6) In Schedule 7 to the Road Management Act 2004, after clause 14(3)(c) insert— "(ca) minimise any disruption to users of different modes of transport which have priority on specified roads;". 15 New section 42A inserted—Specified roads After section 42 of the Road Management Act 2004 insert— "42A Specified roads (1) VicRoads must keep a register of specified roads under this section specifying the mode of transport which is, or the modes of transport which are, to have priority in respect of each specified road. (2) Subject to subsection (3), a road or part of a road may be specified to be a specified road— s. 15 -- 50 of 72 -- Part 4—Road Management Act 2004 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 47 (a) in the case of a specified tram road, jointly by the Minister and the Minister for Public Transport after consultation with VicRoads and the Director of Public Transport; (b) in the case of a specified bus road, jointly by the Minister and the Minister for Public Transport after consultation with VicRoads and the Director of Public Transport; (c) in the case of a specified bicycle road, by the Minister; (d) in the case of a specified pedestrian road, by the Minister; (e) in the case of a specified freight road, by the Minister; (f) in the case of a specified road in respect of any other mode of transport, by the Minister. (3) If a road or part of a road is a municipal road, there must also be consultation with the Minister for Local Government and the municipal council which is the coordinating road authority before the road or part of the road can be specified to be a specified road. (4) If a road or part of a road which is to be a specified freight road is a municipal road, the Minister must obtain the approval of the municipal council which is the coordinating road authority before the road or part of the road can be specified to be a specified freight road. s. 15 -- 51 of 72 -- Part 4—Road Management Act 2004 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 48 (5) VicRoads must publish a notice in the Government Gazette— (a) identifying the road or part of the road which is specified to be a specified road, whether by naming the road or part of the road or showing the road or part of the road on a plan or map; (b) stating the mode of transport or the modes of transport specified as having priority in respect of that specified road; (c) stating the date from which the specification of the road or part of the road as a specified road is to take effect. (6) VicRoads must ensure that the register of specified roads is available for inspection by members of the public— (a) free of charge; (b) during normal business hours; (c) at the place or places determined by VicRoads. (7) It is sufficent for the purposes of subsection (6), if a copy of the register of specified roads is published on an Internet website maintained by VicRoads.". 16 Amendment of section 48A—Definitions In section 48A of the Road Management Act 2004, in the definition of works contractor, for "State road authority" (where twice occurring) substitute "responsible road authority". s. 16 -- 52 of 72 -- Part 4—Road Management Act 2004 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 49 17 Sections 48B and 48C substituted For sections 48B and 48C of the Road Management Act 2004 substitute— "48B Duty of responsible road authority, infrastructure manager or works manager in relation to works on or in immediate vicinity of rail infrastructure or rolling stock A responsible road authority or an infrastructure manager or works manager must, when exercising a power or performing a duty under this Act on or in the immediate vicinity of rail infrastructure or rolling stock, ensure, so far as is reasonably practicable, that he, she or it exercises the power or performs the duty safely. Penalty: In the case of a natural person, 1800 penalty units; In the case of a body corporate, 9000 penalty units.". 18 New sections 48DA, 48DB and 48DC inserted After section 48D of the Road Management Act 2004 insert— "48DA Only one offence committed If both sections 48B and 48D apply to a person in respect of a failure to exercise a power or perform a duty safely, the person can only be convicted of an offence under one of those sections in respect of that failure. s. 17 -- 53 of 72 -- Part 4—Road Management Act 2004 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 50 48DB Duty of rail operator in relation to works on or in immediate vicinity of road infrastructure A rail operator must, when exercising a power or performing a duty under this Act on or in the immediate vicinity of road infrastructure, ensure, so far as is reasonably practicable, that he, she or it exercises the power or performs the duty safely. Penalty: In the case of a natural person, 1800 penalty units; In the case of a body corporate, 9000 penalty units. 48DC Exercising a power or performing a duty safely (1) To avoid doubt, a duty imposed on a person under this Division to ensure, so far as is reasonably practicable, that a power is exercised, or a duty is performed, safely requires the person to— (a) eliminate risks to safety so far as is reasonably practicable; and (b) if it is not reasonably practicable to eliminate risks to safety, to reduce those risks so far as is reasonably practicable. (2) To avoid doubt, for the purposes of this Division, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring that a power is exercised, or a duty is performed, safely— s. 18 -- 54 of 72 -- Part 4—Road Management Act 2004 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 51 (a) the likelihood of the hazard or risk concerned eventuating; (b) the degree of harm that would result if the hazard or risk eventuated; (c) what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk; (d) the availability and suitability of ways to eliminate or reduce the hazard or risk; (e) the cost of eliminating or reducing the hazard or risk.". 19 Section 48E substituted and sections 48EA, 48EB and 48EC inserted For section 48E of the Road Management Act 2004 substitute— "48E Only one offence committed If more than of one of sections 48EA, 48EB, 48EC and 48F apply to a person in respect of a failure to give the required notification, the person can only be convicted of an offence under one of those sections in respect of that failure. 48EA Notification by responsible road authority, infrastructure manager or works manager A responsible road authority or an infrastructure manager or works manager must, before exercising a power or performing a duty under this Act on or in the immediate vicinity of rail infrastructure or rolling stock, notify the owner or occupier of s. 19 -- 55 of 72 -- Part 4—Road Management Act 2004 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 52 the land on which the rail infrastructure or rolling stock is located of the intended exercise of the power or the performance of the duty if the exercise of the power or performance of the duty will threaten, or is likely to threaten, the safety of the rail infrastructure or rolling stock. Penalty: In the case of a natural person, 60 penalty units; In the case of a body corporate, 300 penalty units. 48EB Notification by works contractor A works contractor must, before carrying out works on or in the immediate vicinity of rail infrastructure or rolling stock, notify the owner or occupier of the land on which the rail infrastructure or rolling stock is located of the intention to carry out the works if the carrying out of the works will threaten, or is likely to threaten, the safety of the rail infrastructure or rolling stock. Penalty: In the case of a natural person, 60 penalty units; In the case of a body corporate, 300 penalty units. 48EC Notification by rail operator A rail operator must, before exercising a power or performing a duty under this Act on or in the immediate vicinity of a road authority's road infrastructure, notify that road authority of the intended exercise of the power or the performance of the duty if the exercise of the power or performance of the s. 19 -- 56 of 72 -- Part 4—Road Management Act 2004 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 53 duty will threaten, or is likely to threaten, the safety of the road infrastructure. Penalty: In the case of a natural person, 60 penalty units; In the case of a body corporate, 300 penalty units.". 20 Amendments relating to notification requirements (1) At the end of section 48EA of the Road Management Act 2004 insert— "(2) Notification under this section must be given— (a) in writing; and (b) unless subsection (3) applies, at least 28 days before the proposed exercise of the power or the performance of the duty. (3) If the proposed exercise of the power or the performance of the duty is due to the existence of an emergency or the requirement to carry out urgent works, the period of notice should be as much as is reasonably practicable in the circumstances. Notes 1 See clause 8 of Schedule 7 for notification requirements in certain circumstances. 2 There may also be notification obligations which are relevant under the Rail Safety Act 2006.". (2) At the end of section 48EB of the Road Management Act 2004 insert— "(2) Notification under this section must be given— (a) in writing; and s. 20 -- 57 of 72 -- Part 4—Road Management Act 2004 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 54 (b) unless subsection (3) applies, at least 28 days before the proposed carrying out of the works. (3) If the proposed carrying out of the works is due to the existence of an emergency or the requirement to carry out urgent works, the period of notice should be as much as is reasonably practicable in the circumstances. Notes 1 See clause 8 of Schedule 7 for notification requirements in certain circumstances. 2 There may also be notification obligations which are relevant under the Rail Safety Act 2006.". (3) At the end of section 48EC of the Road Management Act 2004 insert— "(2) Notification under this section must be given— (a) in writing; and (b) unless subsection (3) applies, at least 28 days before the proposed exercise of the power or the performance of the duty. (3) If the proposed exercise of the power or the performance of the duty is due to the existence of an emergency or the requirement to carry out urgent works, the period of notice should be as much as is reasonably practicable in the circumstances. Notes 1 See clause 8 of Schedule 7 for notification requirements in certain circumstances. 2 There may also be notification obligations which are relevant under the Rail Safety Act 2006.". s. 20 -- 58 of 72 -- Part 4—Road Management Act 2004 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 55 (4) At the end of section 48F of the Road Management Act 2004 insert— "(2) Notification under this section must be given— (a) in writing; and (b) unless subsection (3) applies, at least 28 days before the proposed carrying out of the rail operations. (3) If the proposed carrying out of the rail operations is due to the existence of an emergency or the requirement to carry out urgent works, the period of notice should be as much as is reasonably practicable in the circumstances. Notes 1 See clause 8 of Schedule 7 for notification requirements in certain circumstances. 2 There may also be notification obligations which are relevant under the Rail Safety Act 2006.". (5) In Schedule 7 to the Road Management Act 2004, at the foot of clause 8 insert— "Notes 1 See sections 48EA, 48EB, 48EC and 48F for notification requirements in certain circumstances. 2 There may also be notification obligations which are relevant under the Rail Safety Act 2006.". 21 Further amendments relating to notification requirements In sections 48EA(1) and 48EB(1) of the Road Management Act 2004 after "is located" insert "and any relevant provider of public transport". s. 21 -- 59 of 72 -- Part 4—Road Management Act 2004 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 56 22 Consequential amendment to section 48G In section 48G of the Road Management Act 2004 for "48C or 48D" substitute "48D or 48DB". 23 New Division 4B inserted in Part 4 After Division 4A of Part 4 of the Road Management Act 2004 insert— "Division 4B—Specific provisions relating to bus stop infrastructure and tram stop infrastructure 48H Definitions In this Division— bus stop infrastructure means the facilities, signage and amenities provided in connection with a bus stopping point including poles, bus stop flags, bus timetable information and real time information signage, tactile ground surface indicators, connecting paths, bus stop hardstands, bus shelters and other public transport related signage; bus stopping point means a location designated for a bus to stop for the purposes of passengers boarding and disembarking the bus; Secretary means the Secretary to the Department of Transport; tram stop infrastructure means the facilities, signage and amenities provided in connection with a tram stopping point including poles, tram stop flags, tram timetable information and real time information signage, tactile ground surface indicators, tram stop platforms s. 22 -- 60 of 72 -- Part 4—Road Management Act 2004 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 57 and shelters and other public transport related signage; tram stopping point means a location designated for a tram to stop for the purposes of passengers boarding and disembarking the tram. 48I Application of Division (1) This Division does not limit the application of any other provisions of this Act which apply generally in relation to infrastructure and works on roads. (2) The Secretary must comply with the requirements of clause 16 of Schedule 7 before conducting any proposed works in the exercise of the powers conferred on the Secretary under this Division. 48J Powers of Secretary (1) The Secretary may— (a) install bus stop infrastructure and designate bus stopping points; (b) remove, relocate or modify any bus stop infrastructure installed under paragraph (a); (c) remove or relocate any bus stopping point. (2) The Secretary may for the purposes of this section conduct any works which are necessary or desirable including— (a) opening and breaking up any roadway, pathway or area of roadside; and (b) temporarily stopping the traffic on any roadway, pathway or area of roadside. s. 23 -- 61 of 72 -- Part 4—Road Management Act 2004 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 58 (3) In completing the works, the Secretary must after the works are completed reinstate the roadway, pathway or area of roadside to the standard before the works were commenced— (a) as promptly as is reasonably practicable; and (b) as nearly as is reasonably practicable to an equivalent standard of quality and design; and (c) so as to ensure that any feature to assist persons with a disability is restored. (4) If the Secretary has conducted works on any roadway, pathway or area of roadside, the Secretary must bear or pay all reasonable expenses of the reinstatement of the roadway, pathway or area of roadside and any related road infrastructure for 12 months after it is restored, so far as those expenses have been incurred by conducting the works on the roadway, pathway or area of roadside. (5) The powers conferred on the Secretary under this section are in addition to, and do not derogate from, any other powers conferred on the Secretary. 48K Offence in relation to removal, demolition or relocation (1) A person must not without obtaining the consent of the Secretary— (a) remove or relocate a bus stopping point; or s. 23 -- 62 of 72 -- Part 4—Road Management Act 2004 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 59 (b) remove, demolish or relocate any bus stop infrastructure installed under section 48J. Penalty: In the case of a natural person, 10 penalty units; In the case of a body corporate, 50 penalty units. (2) This section is in addition to any other requirements which may apply under clause 16 of Schedule 7. 48L Resolution of disputes Any dispute arising under section 48J between the Secretary and a road authority is to be determined by the Minister for Public Transport, the Minister responsible for the coordinating road authority and the Minister responsible for the responsible road authority or their respective nominees. 48M Guidelines (1) The Secretary may publish guidelines relating to bus stopping points and bus stop infrastructure. (2) Without limiting the generality of subsection (1), the guidelines may provide for any matter or thing relating to the location, design, construction, accessibility, safety, amenity and appearance of bus stopping points and bus stop infrastructure. (3) The Secretary must consult with VicRoads, municipal councils, other relevant road authorities, the Bus Association Victoria and any other person the Secretary considers appropriate in developing guidelines under this section. s. 23 -- 63 of 72 -- Part 4—Road Management Act 2004 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 60 48N Information to be provided by a municipal council If a municipal council installs, removes or relocates a bus shelter, seat or hardstand located at, or in the immediate vicinity of, a bus stopping point, the municipal council must within 28 days notify the Secretary of the location of the bus stopping point and the action that has been taken. 48O Consent of Director of Public Transport required to install, attach or affix rubbish bin or cigarette disposal unit (1) A rubbish bin or cigarette disposal unit must not be installed, attached or affixed to any component of bus stop infrastructure or tram stop infrastructure on which passenger timetable information is provided without the written consent of the Director of Public Transport. (2) This section is in addition to any other requirements which may apply under clause 16 of Schedule 7. 48P Power of Director of Public Transport to remove rubbish bin or cigarette disposal unit installed, attached or affixed without consent (1) The Director of Public Transport may remove any rubbish bin or cigarette disposal unit which has been installed, attached or affixed to any component of bus stop infrastructure or tram stop infrastructure on which passenger timetable information is provided by any person without obtaining the written consent of the Director of Public Transport. s. 23 -- 64 of 72 -- Part 4—Road Management Act 2004 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 61 (2) The Director of Public Transport may recover any reasonable costs incurred under subsection (1) from the person who installed, attached or affixed the rubbish bin or cigarette disposal unit in any court of competent jurisdiction as a debt due to the Director of Public Transport.". 24 Amendment of section 132—Regulations (1) After section 132(3)(c) of the Road Management Act 2004 insert— "(ca) circumstances in which, or conditions subject to which, the powers of a coordinating road authority to impose conditions on any consent may be exercised;". (2) In Schedule 7 to the Road Management Act 2004, in the note to clause 16(6)— (a) after "restrict" insert "or provide for circumstances or conditions relating to the exercise of"; (b) for "section 132(3)(c)" substitute "sections 132(3)(c) and 132(3)(ca)". __________________ s. 24 -- 65 of 72 -- Part 5—Southern and Eastern Integrated Transport Authority Act 2003 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 62 PART 5—SOUTHERN AND EASTERN INTEGRATED TRANSPORT AUTHORITY ACT 2003 25 Amendment of section 3—Definitions In section 3 of the Southern and Eastern Integrated Transport Authority Act 2003— (a) for the definition of Project substitute— "Project means— (a) the EastLink Project; or (b) a Road Transport-Related Project;". (b) insert the following definitions— "EastLink Project means the project described in section 4 or any part of that project; Road Transport-Related Project means a project declared under section 4A to be a Road Transport-Related Project.". 26 Amendment to heading to section 4 In the heading to section 4 of the Southern and Eastern Integrated Transport Authority Act 2003 before "Project" insert "EastLink". 27 New section 4A inserted After section 4 of the Southern and Eastern Integrated Transport Authority Act 2003 insert— "4A Road Transport-Related Projects The Minister may by Order published in the Government Gazette declare any project to be a Road Transport-Related Project for the purposes of this Act.". __________________ s. 25 See: Act No. 25/2003. Reprint No. 1 as at 15 May 2008 and amending Act No. 4/2008. LawToday: www. legislation. vic.gov.au -- 66 of 72 -- Part 6—Transport Act 1983 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 63 PART 6—TRANSPORT ACT 1983 28 New section 84AB inserted After section 84A of the Transport Act 1983 insert— "84AB Chief Investigator may require persons to attend and answer questions (1) If the Chief Investigator considers it necessary for the purposes of an investigation into a public transport safety matter or a marine safety matter under this Part, the Chief Investigator may require a person to attend before the Chief Investigator and answer questions asked by the Chief Investigator relating to matters relevant to the investigation. (2) The requirement under subsection (1) must be by notice in writing. (3) The notice must— (a) be signed by the Chief Investigator; and (b) specify the time and place at which the person is required to attend before the Chief Investigator. (4) The time specified in the notice must be reasonable having regard to the circumstances. (5) When a person attends before the Chief Investigator under this section, the Chief Investigator may require the questions to be answered on oath or affirmation. (6) Before requiring a person to answer a question under this section, the Chief Investigator must inform the person of the effect of subsections (9) and (10). s. 28 See: Act No. 9921. Reprint No. 13 as at 2 January 2008 and amending Act Nos 95/2005, 9/2006, 71/2006, 30/2007, 59/2007, 69/2007, 4/2008 and 44/2008. LawToday: www. legislation. vic.gov.au -- 67 of 72 -- Part 6—Transport Act 1983 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 64 (7) For the purpose of subsection (5), the Chief Investigator may administer an oath or affirmation. (8) A person of whom a requirement is made under this section must not— (a) fail to attend before the Chief Investigator in accordance with the requirement; or (b) refuse to take an oath or make an affirmation when required by the Chief Investigator to do so; or (c) refuse or fail to answer a question lawfully asked of the person by the Chief Investigator. Penalty: 30 penalty units. (9) A person is not excused from answering a question put to him or her under this section on the ground that the answer to the question might tend to incriminate the person or make the person liable to a penalty. (10) An answer given to a question put to a person under this section is not admissible in evidence against the person in any civil or criminal proceeding other than— (a) a proceeding in respect of an offence against this section; or (b) a proceeding in respect of the falsity of an answer. (11) A person who attends before the Chief Investigator in accordance with a requirement under this section is entitled to be paid, in relation to that attendance, fees or allowances fixed by or calculated in accordance with an Order made by the s. 28 -- 68 of 72 -- Part 6—Transport Act 1983 Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 65 Governor in Council for the purposes of this section.". 29 New section 85DA inserted After section 85D of the Transport Act 1983 insert— "85DA Reports not admissible in evidence (1) A report of an investigation into a public transport safety matter or marine safety matter under this Part is not admissible in evidence in any civil or criminal proceeding. (2) Subsection (1) does not apply— (a) to the admissibility of a final report in evidence in a coronial inquiry; or (b) if the court considers that a failure to admit a report into evidence in a criminal proceeding could prejudice the fair trial of the accused. (3) This section applies despite anything to the contrary in sections 85C and 85D. (4) In this section report means— (a) final report; or (b) draft report; or (c) any document that is incidental to a final report or draft report.". __________________ s. 29 -- 69 of 72 -- Part 7—Consequential Amendments to other Acts Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 66 PART 7—CONSEQUENTIAL AMENDMENTS TO OTHER ACTS 30 EastLink Project Act 2004 In section 3(1) of the EastLink Project Act 2004, in the definition of Utility, after paragraph (a) insert— "(aa) a provider of public transport within the meaning of the Road Management Act 2004; or". 31 Melbourne City Link Act 1995 In section 21(1) of the Melbourne City Link Act 1995, in the definition of Utility, after paragraph (a) insert— "(aa) a provider of public transport within the meaning of the Road Management Act 2004; or". 32 Road Safety Act 1986 (1) In section 92(3)(ie) of the Road Safety Act 1986— (a) after "by a" insert "provider of public transport,"; (b) before "road authority's" insert "provider of public transport's,". (2) In section 95(9) of the Road Safety Act 1986 for "Utilities' Infrastructure Reference Panel" substitute "Infrastructure Reference Panel". __________________ s. 30 -- 70 of 72 -- Part 8—Repeal of Amending Act Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 67 PART 8—REPEAL OF AMENDING ACT 33 Repeal of amending Act This Act is repealed on 1 January 2011. 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. 33 -- 71 of 72 -- Transport Legislation Miscellaneous Amendments Act 2009 No. 17 of 2009 68 ENDNOTES † Minister's second reading speech— Legislative Assembly: 4 December 2008 Legislative Council: 12 March 2009 The long title for the Bill for this Act was "A Bill for an Act to amend the Marine Act 1988, the Port Services Act 1995, the Road Management Act 2004, the Southern and Eastern Integrated Transport Authority Act 2003 and the Transport Act 1983, to consequentially amend certain other Acts and for other purposes." Endnotes -- 72 of 72 --