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Transport and Other Legislation Amendment Bill 2011
Transport and Other Legislation
Amendment Bill 2011
Explanatory Notes
Short title
The short title of the Bill is the Transport and Other Legislation
Amendment Bill 2011.
Policy objectives and the reasons for them
State toll roads and local government tollways
Several amendments are proposed to support the efficient delivery of state
toll roads and local government tollways by improving the declaration and
land tenure processes for these projects. These amendments will reduce the
administrative burden on the state and toll road operators and prevent
unnecessarily delaying the commencement of operation of toll roads.
Works for existing railways
The amendment to the Transport Infrastructure Act 1994 removes any
ambiguity in the interpretation of fencing and drainage obligations placed
upon a railway manager when an adjacent land owner submits a
development application for land adjacent to a railway.
The legislation only applies to a railway that existed on 1 July 1995. The
railway manager is responsible for fencing and drainage works in relation
to adjoining land when the railway is first constructed with ongoing
maintenance obligations.
Application of the Land Act 1994
The amendment to the Transport Infrastructure Act 1994 clarifies that a
concurrent sublease involving the rail network is exempted from certain
sections of the Land Act 1994.
With the divestment of the State Assets announced by the Premier in 2009,
QR Limited was structured to create QR Limited (trading as QR National)
and Queensland Rail Limited. Separate railway manager's subleases for the
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Transport and Other Legislation Amendment Bill 2011
respective parts of the rail corridor have been created including two
concurrent subleases where the operations overlap on the North Coast
Line. As a railway manager's sublease and a concurrent sublease provide
similar responsibilities and liabilities, the Land Act 1994 should apply in
the same manner.
Chief Executive taken to be owner of rail corridor and non-rail corridor
land
The amendment to the Transport Infrastructure Act 1994 recognises the
chief executive as the owner of rail corridor and non-rail corridor land
where a development application may be required to be supported by
evidence identified within the Transport Planning and Coordination Act
1994.
Rail corridor land and non-rail corridor land, leased to the State,
represented by the Department of Transport and Main Roads under the
Land Act 1994, is considered a State Resource under Schedule 14 of the
Sustainable Planning Regulation 2009.
Development applications relating to State resources may require evidence
of a resource allocation or entitlement. Therefore the chief executive is
recognised as the owner of rail corridor and non-rail corridor land in
instances where evidence of an allocation or entitlement to the State
resource is required under the Sustainable Planning Act 2009. This is not
currently reflected in the legislation.
Railways on particular roads
The amendment to the Transport Infrastructure Act 1994 extends common
area provisions to apply where a railway crosses a local government road.
The legislation presently allows the Minister to declare a common area
when a railway is constructed on certain roads with the Titles Office
recording the common area in the leasehold land register. While the
legislation presently allows a railway to be on a local government road,
there is no provision to declare a common area over a local government
road. Extending the common area provisions to local government roads
would result in similar recordings when a railway is constructed on any
road.
Procurement
The amendment to the Transport Infrastructure Act 1994 brings the
terminology used in the Act into line with Queensland's State Procurement
Policy. There are several sections of the Transport Infrastructure Act 1994
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Transport and Other Legislation Amendment Bill 2011
that do not align with the State Procurement Policy or the objectives for
chapter 3 as they refer to `price competitive' instead of `value for money'.
Investigating a potential rail corridor
The amendment to the Transport Infrastructure Act 1994 clarifies that the
chief executive has the power to enter and investigate rail corridors under
chapter 7 (Rail transport infrastructure and other matters) of the Act. It has
become unclear what powers the chief executive has to enter and
investigate rail corridors as a result of the divestment of QR Limited.
Interfering with railway
The amendment to the Transport Infrastructure Act 1994 clarifies that a
railway manager's power to protect a railway from interference under
section 255 (Interfering with railway) relates to activities within a railway
corridor. The amendments will also insert review and appeal mechanisms.
The amendments are necessary as the definition of interfere with in the
Transport Infrastructure Act 1994 is broad and potentially misleading, and
the development industry has raised concerns about the scope of section
255 and the lack of review and appeal provisions.
Transport Interface management - Busways
The amendment to the Transport Infrastructure Act 1994 extends the
interface management regime that is in place for light rail in chapter 10 of
the Act to apply to busways. The interface management regime will ensure
that constructors, managers and operators of infrastructure can effectively
fulfil their existing maintenance, operation, safety, environmental and
incident management obligations where their ability to fulfil these
obligations is affected by land or infrastructure owned, managed or
controlled by another party.
Watercourse crossings
The amendments to the Transport Infrastructure Act 1994 enable the
Department of Transport and Main Roads to construct, operate and protect
transport infrastructure over, under, on or in a watercourse (tidal and
non-tidal boundary watercourses). As a result, the Department of Transport
and Main Roads will be able to:
· provide a franchisee with a continuous tenure or right to use
infrastructure from one side of a watercourse crossing to the other;
· construct, augment, improve, maintain, operate, replace, name and
number transport infrastructure over a watercourse; and
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Transport and Other Legislation Amendment Bill 2011
· protect and manage the watercourse crossing as transport
infrastructure.
Gold Coast Rapid Transit
Growth on the Gold Coast, one of Australia's fastest growing cities, is
placing increasing demands on South East Queensland's road and public
passenger transport networks. The delivery of efficient and effective public
passenger transport such as light rail is fundamental to the development of
an integrated transport system with the capacity to support South East
Queensland's growing transport task.
The objectives of this Bill are to implement a second tranche of
amendments to support the delivery and establishment of the Gold Coast
Rapid Transit light rail project.
The second tranche of amendments will build on the framework
implemented in the first tranche - further facilitating the Gold Coast Rapid
Transit as a Public Private Partnership and supporting private investment in
the delivery of the project. It is proposed to amend the Transport
Infrastructure Act 1994, Transport Planning and Coordination Act 1994,
Transport Operations (Passenger Transport) Act 1995, Electrical Safety
Act 2002 and Electricity Act 1994 to:
· provide greater certainty about the establishment of and planning for
the light rail corridor for delivery by the Public Private Partnership;
· streamline administrative processes involved with the establishment of
the light rail and transport corridors, title corrections and disposal of
land for all transport infrastructure projects;
· assist with the Operator Franchise processes and give clarity for the
bidders and therefore, a more competitive price for the State;
· facilitate and provide greater flexibility for infrastructure delivery and
construction;
· clarify and resolve anomalies in existing legislation for light rail and
busway; and
· clarify the original intent of legislation introduced by the Transport
and Other Legislation Amendment Act (No. 2) 2010 that all state land
is available for the establishment of light rail and that compensation is
available only for physical damage caused by the attachment of
overhead wiring to a building.
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Transport and Other Legislation Amendment Bill 2011
Sale of surplus land
The amendment to the Transport Planning and Coordination Act 1994
streamlines the sale of compulsorily resumed land or parts of resumed land
that are no longer required for the original resumption purpose. Currently,
to dispose of resumed land within seven years of resumption, section 41 of
the Acquisition of Land Act 1967 requires the Department of Transport and
Main Roads to obtain a valuation from the valuer-general, before offering it
back to the former owner.
However, these parcels are often unattractive to the former owner due to
their size, shape, access, aspect or position beside a major piece of
infrastructure and the acceptance rate by former owners is extremely low.
In most instances the former owners have used the resumption
compensation funds to purchase a new property and have re-established
their lives elsewhere.
The current process places a considerable administrative burden on both
the Department of Transport and Main Roads and the Department of
Environment and Resource Management in terms of resources and time.
Under the proposed amendments, the chief executive can, before obtaining
a valuation, ask the former owner if they are interested in repurchasing the
property. If the former owner expresses an interest, then the chief
executive will procure a valuation from a registered valuer. Once the
valuation is obtained the owner can then make a decision as to whether they
wish to proceed with the purchase. Section 27A also enables the chief
executive to register an easement over the land which was originally
resumed before offering back, thus avoiding the necessity of a second
resumption of the easement.
This proposed amendment will save considerable time and resources for
both the Department of Transport and Main Roads and the Department of
Environment and Resource Management and is timelier for the former
owner.
This amendment recognises that the land offered back may be the subject
of an easement to the Department of Transport and Main Roads to protect
the structural and operational integrity of infrastructure with an allowance
for the decrease in value.
Transport Noise Corridors
The amendment to the Building Act 1975 brings the provisions in chapter
8B (Transport noise corridors) into line with the original policy intent. The
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Transport and Other Legislation Amendment Bill 2011
legislation currently does not include franchised roads within the definition
of State-controlled road or road, under the control of a local government,
which has created uncertainty regarding franchised roads and whether they
are covered by the transport noise provisions. The amendments will also
clarify the noise level conditions that apply to railway land and
state-controlled roads.
Light rail operators
The amendment to the Transport Operations (Passenger Transport) Act
1994 excludes light rail operators from the operator accreditation, driver
authorisation and standards requirements of the legislation as they are more
appropriately regulated under the Transport (Rail Safety) Act 2010. This
will bring the treatment of light rail into line with that of heavy rail.
Driver disqualifying offences
The amendment to the Transport Operations (Passenger Transport) Act
1994 better aligns its driver disqualifying offence provisions with the
disqualifying offence and serious offence provisions in the Commission for
Children and Young People and Child Guardian Act 2000 to reduce the
administrative overlaps between the Department of Transport and Main
Roads and the Commission.
Mandatory Written Bailment Agreements for Taxi Operators and Drivers
The amendment to the Transport Operations (Passenger Transport) Act
1994 requires all bailment arrangements between taxi drivers and operators
be contained in a signed agreement which will ensure drivers and operators
have written proof of their agreements.
Civil (court based) banning orders
The amendment to the Transport Operations (Passenger Transport) Act
1994 seeks to provide an additional process of civil banning (exclusion)
orders to compliment and strengthen the current criminal sentencing
exclusion order regime which is based on persons who have been convicted
of one or more offences. A civil exclusion order, similar to an existing
criminal exclusion order process in the Transport Operations (Passenger
Transport) Act 1994, is primarily a deterrence based measure which aims
to safeguard the following: the safety and security of persons using the
public transport network; the preservation of the amenity and condition of
the public transport network; and the protection of revenue from the public
transport network.
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Transport and Other Legislation Amendment Bill 2011
Alcohol ignition interlock exemption
Amendments to the Transport Operations (Road Use Management) Act
1995 will consolidate the regulation-making power for alcohol ignition
interlock exemptions that are based on geographical location.
Drink driving reforms
Drink driving related fatalities represented 22.9% of all road fatalities in
Queensland in the seven years prior to 30 June 2009. Following a review of
the current approach to drink driving, a number of initiatives are being
introduced to help reduce drink driving and the number of people killed
and injured on Queensland roads because of it.
Licence suspension imposed by Magistrates Court
The Bill clarifies the interaction between the Bail Act 1980 and provisions
of the Transport Operations (Road Use Management Act) 1995 that require
a Magistrates Court to suspend the driver licence of a person who fails to
attend court on a drink or drug driving charge. The Bill also provides
discretion for the court to not impose a licence suspension, or to remove a
previously imposed suspension, where it is in the interests of justice to do
so. These amendments will ensure that these licence suspensions are only
imposed in appropriate circumstances.
Release of information
Transport legislation contains restrictions on the release of information
held by the department relating to individuals. While it is appropriate to
limit the release of this information, it is desirable that certain information
relating to an individual can be released to that person in a timely and
cost-efficient manner such as over the telephone or over the counter at a
customer service centre. For example, providing information to a person
about the number of demerit points they have recorded on their traffic
history has the potential to influence the manner in which that person
drives.
Bus and transit lane enforcement
The Transport and Other Legislation Amendment Act 2009 (No. 47 of
2009) amended the Transport Operations (Road Use Management) Act
1995 to give powers to authorised officers other than police officers to
enforce bus lanes and transit lanes. A transit lane is a lane designed for use
by higher occupancy vehicles that displays a `T2' or `T3' sign.
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Transport and Other Legislation Amendment Bill 2011
The powers were given on a trial basis. The outcomes of the trial
demonstrated that the enforcement reduced travel times and increased
compliance with bus and transit lane restrictions. The Bill will amend the
Transport Operations (Road Use Management) Act 1995 to give authorised
officers these powers on a permanent basis.
Protection for whistleblowers
The amendment to the Transport (Rail Safety) Act 2010 inserts
whistleblower protection for the reporting of potential breaches of rail
safety law and/or other rail safety issues to the Rail Safety Regulator. The
Rail Safety Regulator has advised that the lack of whistleblower
protections is likely to deter some persons from reporting issues if they
may be subject to recriminations or reprisal.
Exemption of accredited railways
The amendment to the Transport (Rail Safety) Act 2010 defines the types of
low risk railways that may apply to the chief executive for exemption from
the need to comply with all or some of the accreditation requirements.
Accreditation of some small railway operations is not consistent with the
objects and intent of the Transport (Rail Safety) Act 2010, for example,
some railway operations do not convey passengers or freight and have a
level of risk that accreditation would not provide any reasonable
improvement in the safe operation of the railway.
Achievement of policy objectives
State toll roads and local government tollways
Amendments to the Transport Infrastructure Act 1994 will:
· provide that the Minister must consider whether the local government
has satisfied certain conditions and other relevant matters when
deciding whether to make a local government tollway corridor land
declaration and will align the provisions that apply for the various
categories of land that may be the subject of the declaration;
· allow the Minister to make a local government tollway declaration
before making a local government tollway corridor land declaration
when requested by a local government;
· extend the categories of land that may be declared by the Minister to
be local government tollway corridor land and remove a restriction on
declaring a State-controlled road as local government tollway corridor
land; and
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Transport and Other Legislation Amendment Bill 2011
· enable the Minister to make a declaration of additional land to be
added to existing leases of State toll road corridor land or local
government tollway corridor land.
Works for existing railways
The amendment to section 260 of the Transport Infrastructure Act 1994
removes any doubt that the railway manager's obligations are at the
standard that applied at the time a railway was established. The owner of
adjoining land is responsible for upgrading fencing and drainage to satisfy
any increase in standards required for a new use of the adjoining land
(particularly where the new use requires a development application) and for
associated maintenance.
For example, at the time of establishment of the railway, the railway
manager's obligations for fencing would likely be a three strand barbed
wire fence. Upon the establishment of a new use (brought about by a
development application), the fencing obligations are to a higher standard
and are the responsibility of the adjoining owner.
Application of the Land Act 1994
The amendment to section 262 of the Transport Infrastructure Act 1994
clarifies that exemptions to the Land Act 1994 listed apply to a concurrent
sub-lease in the same manner as a railway manager's sublease.
Chief executive taken to be owner of rail corridor and non-rail corridor
land
The amendment to the Transport Infrastructure Act 1994 reflects that the
chief executive is also considered the owner of rail corridor and non-rail
corridor land in circumstances where evidence of a resource allocation or
resource entitlement may be required in place of the chief executive's
owner's consent to a development application.
Railways on particular roads
The amendment to the Transport Infrastructure Act 1994 allows a common
area to be declared and recorded over a local government road to provide
uniformity when a railway is constructed over any road.
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Transport and Other Legislation Amendment Bill 2011
Procurement
The amendments to the Transport Infrastructure Act 1994 will bring the
terminology in section 8 of the Transport Infrastructure Act 1994 (which
outlines the objective of seeking `value for money') into line with the
Queensland's State Procurement Policy. This is achieved by replacing the
phrase `price competitive' with `value for money' in several sections.
Investigating a potential rail corridor
The amendments to the Transport Infrastructure Act 1994 (sections 106,
108, 109, 117 and 118) and the insertion of new section 109A will clarify
that the chief executive has the power to enter and investigate rail corridors
under chapter 7 (Rail transport infrastructure and other matters), which was
unclear following the divestment of QR Limited.
Interfering with railway
The amendments to section 255 of the Transport Infrastructure Act 1994
(Interfering with railway) will clarify that the power under section 255 to
protect railway from interference relates to activities in or on a railway
corridor only. The amendment will also insert review and appeal
mechanisms in schedule 3, for decisions made under section 255.
Transport Interface management - Busways
The insertion of new chapter 15A into the Transport Infrastructure Act
1994 will extend the interface management regime that is in place for light
rail in chapter 10 of the Transport Infrastructure Act 1994 to apply to
busway. The interface management regime will ensure that constructors,
managers and operators of infrastructure can effectively fulfil their existing
maintenance, operation, safety, environmental and incident management
obligations where their ability to fulfil these obligations is affected by the
use of, or activities on, land or infrastructure owned, managed or controlled
by another party.
Watercourse crossings
The insertion of new section 477F (Watercourse crossings) in the Transport
Infrastructure Act 1994 will clarify that the Department of Transport and
Main Roads has the power to establish transport infrastructure over
State-owned watercourses. This will give the State the ability to provide a
continuous tenure or right to use infrastructure from one side of a river
crossing to the other. This will facilitate the establishment of a transport
corridor than can continue over watercourses, which is particularly
important for the purpose of private sector investment.
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Transport and Other Legislation Amendment Bill 2011
Watercourse crossings are included in the new definition of State land in
schedule 6 for the purposes of the grant of a licence under section 355A for
a transport corridor.
Gold Coast Rapid Transit Light Rail Project
This second tranche of amendments for the Gold Coast Rapid Transit
project will amend the Transport Infrastructure Act 1994, Transport
Planning and Coordination Act 1994, Transport Operations (Passenger
Transport) Act 1995, Electrical Safety Act 2002 and the Electricity Act
1994 to:
· provide for compliance management plans that will establish a regime
that will avoid the need to obtain potentially duplicate approvals that
would otherwise be necessary for construction works along the
corridor;
· exempt the light rail franchisee from licensing and technical
requirements of the Electricity Act and Electrical Safety Act, in the
same manner that exists for heavy rail. These amendments are
required for the construction and operation of light rail, particularly if
the light rail is to be established in a road environment;
· exempt a light rail franchisee from the Passenger Transport Act
licensing and accreditation requirements, as these are provided for in
the Transport (Rail Safety) Act 2010. A light rail franchisee will also
be exempted from the Passenger Transport Standards, as these issues
will be dealt with in the light rail franchise agreement and
performance specifications;
· clarify the original intent of legislation introduced by the Transport
and Other Legislation Amendment Act (No. 2) 2010 that for the
purposes of section 355A (Licence in relation to light rail land and
infrastructure), light rail land can be all land held by the state
including state land where there may be third party interests.
Consequently, the amendment provides a compensation framework
for persons with rights of occupancy on affected state land; and
· clarify the original intent of legislation introduced by the Transport
and Other Legislation Amendment Act (No. 2) 2010 that compensation
is available only for physical damage caused by the attachment of
overhead wiring to structures.
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Transport and Other Legislation Amendment Bill 2011
Transport Noise Corridors
The amendments to the chapter 8B provisions of the Building Act 1975 for
transport noise corridors will bring chapter 8B into line with the original
drafting intent of the provisions. The amendment to section 246W clarifies
that franchised roads are included in the transport noise provisions, which
was previously unclear. The section 246Z(2)(b) amendment separates the
noise requirements for state-controlled roads and railway, clarifying the
noise levels required for each.
Light rail operators
Exclusion of these operators from the operator accreditation, driver
authorisation and standards requirements will reduce their administrative
burden as they will be subject to only one set of regulatory requirements in
Queensland, that is, the Transport (Rail Safety) Act 2010.
Driver disqualifying offences
The better alignment of the passenger transport legislation driver
disqualifying offences with disqualifying offence and serious offence
provisions in the Commission for Children and Young People and Child
Guardian Act 2000 will improve the efficiency of assessing whether
individuals are able to hold driver authorisation by reducing the
administrative overlaps between the Department of Transport and Main
Roads and the Commission.
Mandatory written bailment agreements for taxi operators and drivers
Requiring bailment agreements between taxi drivers and operators to be
contained in a signed agreement will ensure the rights of the drivers and
operators are able to be legally enforced. This will ensure a fairer and more
transparent system to enable drivers to work in the taxi and limousine
industries.
Civil (court based) banning orders
The amendment to the Transport Operations (Passenger Transport) Act
1994 will enable the court to make a civil exclusion order which can
restrict or prohibit a person's use of the public transport network for a
period of up to 12 months. To make a civil exclusion order, the court must
be satisfied that the person has committed an act of violence. That is,
committed an act of violence against another person or property on the
public transport network, of such a nature that the act of violence would
cause a person in the vicinity to reasonably fear bodily harm to any person
or to damage property.
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Transport and Other Legislation Amendment Bill 2011
As a stand alone `alternative trigger', a court may also make an exclusion
order should a person be issued with 10 or more penalty infringement
notices for a `relevant offence' as defined in the Transport Operations
(Passenger Transport) Act 1994 within a 12 month timeframe.
Under the Transport Operations (Passenger Transport) Act 1994, a
transport indictable offence is an indictable offence, including an indictable
offence dealt with summarily, committed on or in public transport
infrastructure. A relevant offence includes fare evasion, interfering with a
service, vehicle or equipment, creating a disturbance or nuisance on
railway or vehicle, interfering with a railway, trespassing on a railway,
trespassing on busway land, trespassing on light rail land.
Alcohol ignition interlock exemption
The regulation-making power in the Transport Operations (Road Use
Management) Act 1995 which deals with alcohol ignition interlock
exemptions based on geographical location will be amended. The
amendment will ensure that an exemption may be granted if:
1. the nearest interlock installer is reasonably inaccessible from the
person's principal place of residence; or
2. the person's principal place of residence is outside both a prescribed
radius from the nearest interlock installer and an area where a mobile
installation service is provided by a prescribed interlock installer.
Drink driving reforms
Amendments to the Transport Operations (Road Use Management) Act
1995 will:
1. introduce a new middle alcohol limit offence for drink driving
offenders with a blood/breath alcohol concentration of 0.10 or above
but less than 0.15;
2. provide that people charged with this new offence will have their
driver licences immediately suspended or, if they are unlicensed, will
be immediately disqualified from obtaining a licence;
3. increase the maximum time allowed to obtain a breath and/or blood
specimen for drink driving offences from two to three hours; and
4. allow the arresting/detaining police officer to also conduct the breath
analysis for drink driving offences.
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Transport and Other Legislation Amendment Bill 2011
Licence suspension imposed by Magistrates Court
The Transport Operations (Road Use Management) Act 1995 currently
provides that if a person charged with a drink or drug driving offence fails
to appear in court on that charge, the court must suspend the person's driver
licence. An amendment clarifies that a suspension need not be imposed if
the person's appearance is excused by the Bail Act 1980, which allows a
person to be represented by their lawyer.
A further amendment provides magistrates with discretion to not impose
such a suspension where it is in the interests of justice. This supplements
the existing discretion which can be exercised where a person was
physically incapable of attending court for medical or other reasons.
A final amendment allows the court to revoke a prior suspension order
where it is in the interests of justice to do so.
Release of information
The amendments authorise the chief executive to release certain
information to a person verbally without requiring the person to make a
written application. The information will only be released, however, once
the chief executive is satisfied the person is the person to whom the
information relates.
Where a person requires information to be provided in a written form (for
example, a printed traffic history), the amendments require that the existing
application process must be followed.
Bus and transit lane enforcement
The Transport Operations (Road Use Management) Act 1995 will be
amended to remove the expiry clause which applies to the powers of
authorised officers to enforce restrictions on the use of bus and transit
lanes.
Protection for whistleblowers
The amendments achieve the policy objectives by providing protection to
whistleblowers to encourage them to report openly and honestly, rail safety
issues to the Rail Safety Regulator.
Exemption of accredited railways
The amendments achieve the policy objectives by providing the chief
executive with the power to consider exemption from all or some of the rail
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Transport and Other Legislation Amendment Bill 2011
safety accreditation requirements for a low risk railway based on the level
of risk of the railway operation.
Alternative ways of achieving policy objectives
Light rail operators
The only alternative for achieving the proposed policy objectives of
reducing the administrative burden of light rail operators would be to
exempt them from the accreditation requirements under the Transport (Rail
Safety) Act 2010, rather than the passenger transport legislation. However,
this would be inappropriate as the Rail Safety Act is part of a national
approach to regulate all railway operations (e.g. heavy rail and light rail).
Driver disqualifying offences
A number of other approaches to reduce the administrative overlaps
between the Department of Transport and Main Roads and the commission
were considered. These were:
1. requiring all public transport driver applicants (approximately 18 000
in 2010) to obtain a blue card as well as driver authorisation. This
approach was not considered feasible as it would require drivers to
hold and pay for two forms of authorisation (blue card and driver
authorisation) as the Department of Transport and Main Roads still
needs to screen applicants for non-child related criminal offences and
driver related offences. Further, the Commission for Children and
Young People and Child Guardian (the Commission) would have to
process a further 18 000 blue card applications annually; or
2. the Commission would need to advise the Department of Transport
and Main Roads if a person had been convicted of a serious or
disqualifying offence under the Commission for Children and Young
People and Child Guardian Act 2000. This approach was not
progressed as it would require major changes to the policy principles
underpinning the Commission's act about the privacy of the
information collected on individuals to determine whether the person
was suitable to work with children.
Taxi bailment agreements
The only other feasible option was the current voluntary industry led
approach which has led to situations of exploitation of drivers. The
legislated approach in the Bill is supported by the industry as it will ensure
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Transport and Other Legislation Amendment Bill 2011
a fairer and more transparent system to enable drivers to work in the taxi
and limousine industries.
There are no alternative ways to achieving the policy objectives for the
remaining amendments.
Estimated cost for government implementation
Mandatory written bailment agreements for taxi operators and drivers
There will be some increase in Department costs in auditing taxi operator
compliance to the taxi bailment requirements. However, it is expected that
these costs will be met within current departmental resources. There may
be increased demand on the Queensland Civil and Administrative
Tribunal's minor civil dispute jurisdiction that such costs are unable to be
estimated at this time.
The costs for implementing the remaining amendments will be minimal
and will be met from existing budget allocations.
Consistency with fundamental legislative principles
Local government tollways
An amendment to the Transport Infrastructure Act 1994 expands the
categories of land that may be declared by the Minister to be local
government tollway corridor land. The amendment potentially raises the
fundamental legislative principle that legislation that provides for the
compulsory acquisition of property must only do so with fair
compensation. The amendment takes into account the rights and liberties of
individuals in the following ways:
1. the additional categories of land will be limited to non-freehold land,
on or within, which road transport infrastructure or rail transport
infrastructure is situated;
2. the declaration may continue stated interests in relation to the local
government tollway corridor land; and
3. a person whose interest in the land has not been continued in the
Minister's declaration will be entitled to claim compensation under
existing provisions of the Acquisition of Land Act 1967.
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Transport and Other Legislation Amendment Bill 2011
Interfering with railway
Clause 47, which amends section 255 (Interfering with railway) of the
Transport Infrastructure Act 1994, may be considered not to have a
sufficient regard to the rights and liberties of individuals (Legislative
Standards Act 1992, section 4(3)(g)).
This provision provides that a person must not, whilst in or on a railway
corridor, interfere with a railway or its operations without the railway
manager's approval. The purpose of this section is to support the railway
manager's responsibility to ensure the safety of all users of the railway and
the operational safety and integrity of the railway itself.
Prior to these amendments, there has been some confusion as to whether a
railway manager could exercise this power outside of a railway corridor.
This may have been a breach of a fundamental legislative principle. This
amendment will ensure that the railway manager can only exercise this
power within a railway corridor. Within a railway corridor, it is a
reasonable expectation that the railway manager can control activities that
may jeopardise the safety of rail passengers and the operational safety and
integrity of the railway.
Limited compensation for easement etc. or damage relating to overhead
wiring for a light rail
Clause 62, which amends section 377R (Limited compensation for
easement etc. or damage relating to overhead wiring for a light rail) of the
Transport Infrastructure Act 1994, may be considered not to have a
sufficient regard to the rights and liberties of individuals (Legislative
Standards Act 1992, section 4(3)(g)) or provide for fair compensation for
the compulsory acquisition of property (Legislative Standards Act 1992,
section 4(3)(i)), by limiting the definition of light rail overhead wiring
damage to physical damage to a structure caused by the construction and
affixation of overhead attachments for a light rail, and hence limiting the
compensation that is available.
Section 377R was originally inserted by the Transport and Other
Legislation Amendment Act (No. 2) 2010 to establish a compensation
framework for an easement or other interest in land, taken by the chief
executive under part 4 of the Transport Planning and Coordination Act
1994, for overhead attachments for a light rail and damage caused by the
attachment of the overhead wiring.
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Transport and Other Legislation Amendment Bill 2011
The amendment to section 377R simply clarifies the original intent of the
provision as stated in the explanatory notes for the Transport and Other
Legislation Amendment Act (No. 2) 2010 stating that compensation is
available only for physical damage caused by the attachment of overhead
wiring for a light rail. The onus is on the department to ensure that all
physical damage to structures is remedied. However, should the property
owner remain unsatisfied, a process for claiming compensation has been
provided in section 377R.
This amendment does not impact on or remove the right of a property
owner to receive compensation for the acquisition of an easement.
Interface arrangements
Clause 63, which inserts new chapter 15A (Transport interface
management) into the Transport Infrastructure Act 1994 extends the
interface management arrangements previously in place for light rail to
also cover busway. These amendments may be considered not to have a
sufficient regard to the rights and liberties of individuals (Legislative
Standards Act, section 4(3)(g)).
The State has a responsibility under transport legislation for safety of
persons and the maintenance of structural and operational integrity of all
transport infrastructure and public transport networks. Within the urban
footprint, delivery and management of transport infrastructure is becoming
increasingly complex.
New chapter 15A does not impact on existing safety, maintenance or
liability obligations of the parties, but instead, establishes a framework
within which these obligations can be effectively managed and
coordinated. The amendments are designed to ensure these interactions are
undertaken in a manner that ensures the safety, structural and operational
integrity of transport infrastructure.
Additionally, it is important to note that before an interface management
area may be declared, the chief executive is required to undertake
consultation with all parties (and provides the opportunity for submissions)
that the chief executive reasonably believes may be impacted by the
declaration.
The process and the significant penalty provisions, which are consistent
with the Transport (Rail Safety) Act 2010, reinforce the serious safety
implications associated with complex transport interfaces with other land
uses. The proposed amendments establish an appropriate dispute resolution
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Transport and Other Legislation Amendment Bill 2011
process, and it is intended that the enforcement of penalties will be used as
a last resort.
Investigating a potential rail corridor
Clauses 36 - 43 amend the Transport Infrastructure Act 1994 (sections 106,
108,109, 115, 116, 117 and 118) and insert new section 109A to clarify that
the chief executive has the power to enter and investigate rail corridors
under chapter 7 (Rail transport infrastructure and other matters).
These amendments may be considered not to have a sufficient regard to the
rights and liberties of individuals (Legislative Standards Act, section
4(3)(g)).
As a result of the divestment of QR Limited, it is necessary to clarify the
chief executive's power to enter and investigate rail corridors.
The amendments are consistent with the existing powers of an investigating
authority to investigate a railway corridor and will provide consistency
with other chapters of the Transport Infrastructure Act 1994 by bringing
the rail transport infrastructure provisions into line with the provisions
already in place for road, busway and light rail.
While the amendments will enable the chief executive to enter land for the
purpose of investigating the land's potential suitability as a rail corridor, the
amendments are justified as the chief executive must give written notice
before land is entered. Furthermore, section 118 makes clear that under
chapter 7, part 2 (Investigating a potential rail corridor) an owner or
occupier of land can claim compensation for loss or damage arising out of
entry onto the land.
Watercourse Crossings
Clause 65 inserts new section 477F of the Transport Infrastructure Act
1994 (Watercourse crossings), which may be considered not to have a
sufficient regard to the rights and liberties of individuals (Legislative
Standards Act 1992, section 4(3)(g)) or provide for fair compensation for
the compulsory acquisition of property (Legislative Standards Act 1992,
section 4(3)(i)). The provision will allow the chief executive to construct,
augment, replace, maintain and operate transport infrastructure over, under,
on or in a state owned or held watercourse.
The insertion of new section 477F is considered to be justified as it will not
change the underlying tenure of the land in the appropriate land registry,
impact on Native title rights, impact on common law or statutory rights to
use a navigable waterway as a public highway, or exclude the provisions of
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Transport and Other Legislation Amendment Bill 2011
the Sustainable Planning Act 2009 or any other Act. New section 477F will
not affect the rights for privately owned watercourses under the Acquisition
of Land Act 1967. The Acquisition of Land Act 1967 provisions regarding
fair compensation will still apply if a watercourse crossing were to cross a
private waterway. The provisions do not detract from any legislative or
common law obligation to ensure river crossings are constructed and
operated in such a way that they do not impede the flow of water.
Clause 66 inserts section 578 (Declaration and validation for watercourse
crossings), transitional provision to ensure that all previously constructed
watercourse crossings have legislative authority. Whilst potentially not
having sufficient regard to the rights and liberties of individuals
(Legislative Standards Act 1992, section 4(3)(g)), this provision merely
clarifies the pre-existing powers of the chief executive and the legitimacy
of existing infrastructure and does not impact on the rights of any person.
Licence under sections 303AB (Licence in relation to busway land or
busway transport infrastructure) and 355A (Licence in relation to light rail
land or light rail transport infrastructure)
Clauses 50 and 56 amend sections 303AB and 355A in relation to granting
of licences over land, which now include privately owned land and State
land over which third party interests may exist. These provisions may not
be considered to have a sufficient regard to the rights and liberties of
individuals (Legislative Standards Act 1992, section 4(3)(g)) or provide for
fair compensation for the compulsory acquisition of interests in land
(Legislative Standards Act 1992, section 4(3)(i)). However, these
provisions ensure that in the case of privately owned land, the chief
executive must enter into an agreement with the owner in relation to
busway or light rail transport infrastructure and for the granting of the
licence. In this respect, there can be no compulsory acquisition. Further,
compensation provisions are inserted into sections 303AC and 355B, for
licences granted under sections 303AB and 355A.
Alignment of driver disqualifying offences
The Bill amends the Transport Operations (Passenger Transport) Act 1994
to make a person who has been convicted of a Commission for Children
and Young People and Child Guardian Act 2000 schedule 4 disqualifying
offences that included a term of imprisonment or who is subject to offender
reporting obligations, and offender prohibition order, a disqualification
order or a sexual offender order under section 169(1)(b) (of the
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Transport and Other Legislation Amendment Bill 2011
Commission for Children and Young People and Child Guardian Act 2000)
ineligible to hold driver authorisation.
For a person with such convictions to hold driver authorisation currently,
the Children's Commission and the chief executive would have to deem
that the person had an exceptional case. Although it is extremely unlikely
that this has occurred, there is a remote possibility that there may be some
individuals who will be required to surrender their driver authorisation
because of this amendment.
In considering a person's suitability to hold driver authorisation, the
Passenger Transport Act requires the chief executive to take account of the
paramount principle that children and other vulnerable members of the
community must be protected. Accordingly, it is considered that this
paramount principle overrides the fundamental legislative principal of the
rights of an individual who has been convicted of such an offence with a
term of imprisonment or has an order.
Civil (court based) banning orders
The proposed scheme for civil banning orders could be considered to be
inconsistent with the fundamental legislative principle of having sufficient
regard to rights and liberties of individuals (Section 4(3) of the Legislative
Standards Act 1992) as it proposes to remove the right of a person (the
respondent) to use certain public transport if the person has been issued
with a banning order from a court. As it is proposed that a civil banning
order may be issued to a respondent who has not been convicted of an
offence, it could be claimed that such a banning order breaches
fundamental civil liberties in a democratic society.
However, this must be balanced against the public policy objective of
regulation compatible with minimising the adverse effects on the safety
and welfare of public transport users, as well as minimising the harm to the
good order or management of the public transport network. The
fundamental legislative principle inconsistency is also partially mitigated
as the civil and criminal court-based schemes contain the inherent
safeguards associated with a judicial process, for example, consistency
with natural justice principles, a right of hearing and an appropriate avenue
of appeal. As well, the banning order can be varied depending on changing
circumstances; for example, so that the offender is not unfairly restricted in
employment or training opportunities.
The proposed scheme also requires the Police Commissioner to give the
information about any criminal history that the respondent may have to the
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Transport and Other Legislation Amendment Bill 2011
chief executive. This could be considered a breach of the fundamental
legislative principle regarding privacy. While this is acknowledged,
information about a respondent's criminal history is essential for the
operation of the scheme as it will enable the chief executive to determine
whether or not to proceed with a civil banning order application. Also, the
courts would need such information to determine whether or not to issue a
civil banning order.
Drink driving reforms
The amendments create a new middle alcohol limit offence that applies
when a driver has a blood/breath alcohol concentration of 0.10 or above but
less than 0.15. Under current legislation these drivers would be charged
with a general alcohol limit offence and subject to the penalties and
sanctions that apply to this offence.
A person convicted of the new middle alcohol limit offence will be subject
to a maximum penalty and a period of licence disqualification that is higher
than those that apply to the general alcohol limit offence. The introduction
of this new level of offence and the penalties associated with it are justified
by the seriousness of the offence. At a blood/breath alcohol concentration
of 0.10, drink drivers have a crash risk that is almost five times the crash
risk of a person with no alcohol in their blood or breath. In the seven years
to 2007/08, drivers recording a blood/breath alcohol concentration of 0.10
or higher accounted for approximately 80% of drink driving-related fatal
crashes in Queensland.
It is appropriate that these drink drivers are subject to penalties and
sanctions that reflect the seriousness of the road safety risk posed to
themselves and other road users.
A person who is disqualified from holding a driver licence as a result of a
conviction for the new middle alcohol limit offence will be entitled to apply
to the court, under existing provisions, for a restricted licence. The existing
eligibility criteria and restrictions will apply in relation to the granting of
any restricted licence.
The amendments will also extend the existing immediate licence
suspension provisions to include those people charged with the new middle
alcohol limit offence.
Any interference with an individual's ability to continue driving is
considered justified because crash risk research and Queensland crash data
demonstrate the seriousness of the road safety risk posed by drivers above
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Transport and Other Legislation Amendment Bill 2011
the middle alcohol limit. Immediate licence suspension protects the public
by restraining drink drivers who pose a high road safety risk and has the
potential to prevent the person committing further drink driving offences
while the suspension is in effect.
Those people whose licence is immediately suspended due to being
charged with a middle alcohol limit offence will be entitled to apply to the
court, under existing provisions, for an order allowing them to drive prior
to their court appearance. The existing eligibility criteria and restrictions
will apply in relation to any such order.
Protection for whistleblowers
Clause 124 (section 267A-267C) provides protection for a whistleblower
from incurring liability for disclosing information, potentially breaches the
principle that legislation should not confer immunity from proceeding or
prosecution without adequate justification (Legislative Standards Act 1992,
section 4(3) (h)), by providing protection for the whistleblower.
The amendment is justified because it is a proven means of providing an
incentive (as used in the aviation industry and in other Australian
jurisdictions in the rail industry) to encourage persons within the industry
to come forward without fear of recriminations or reprisal. Even a minor
breach of safe practice has the potential to cause substantial harm, injury or
loss of life. The purpose of the Transport (Rail Safety) Act 2010 is to
regulate the rail industry to ensure safety. Persons disclosing information
are not provided with immunity for their own illegal acts. Immunity is only
in relation to the disclosure. There is significant public interest in ensuring
rail safety for the community, this amendment provides adequate
justification for the limited immunity for the whistleblower.
Exemption of accredited railways
Clause 121 and 122, amend the Transport (Rail Safety) Act 2010 exempting
rail transport operators from the Act, potentially breaches the principle that
legislation should have sufficient regard to the institution of Parliament
(Legislative Standards Act 1992, section 4(2)(b)), by allowing an
administrative decision to exempt a rail transport operator from the
requirement to be accredited for all or stated railway operations relating to
a low risk railway.
This amendment is considered to be in the public interest as it ensures that
those low risk, often not for profit and/or Tourist and Heritage operators,
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Transport and Other Legislation Amendment Bill 2011
are not unnecessarily subjected to the onerous requirements under the Act
that do not reflect their railway's operating risk.
Consultation
Local government tollways
The Brisbane City Council was consulted on all amendments relating to
local government tollways.
Light rail operators
As these amendments are to provide for a reduction in overlap of
legislation requirements, no consultation was undertaken with community
stakeholders or organisations.
Driver disqualifying offences
The amendments have been developed in consultation with the
Commission for Children and Young People and Child Guardian. No other
consultation was undertaken with community stakeholders or organisations
as the amendments are intended to reduce the overlap in legislation
requirements between the Transport Operations (Passenger Transport) Act
1994 and the Commission for Children and Young People and Child
Guardian Act 2000.
Mandatory written bailment agreements for taxi operator drivers
Consultation with industry stakeholders occurred through a number of
forums including the Taxi Industry Advisory Committee and the Taxi
Industry Health and Safety Committee. These committees include
representatives from major industry groups such as the Taxi Council of
Queensland, the Transport Workers Union and Queensland Taxi Drivers
Inc. Through these forums independent drivers were also consulted. Apart
from a representative from the Cab Drivers Association of Queensland,
who argued that the amendments did not go far enough and supported the
implementation of all of the Ombudsman's recommendations, there was
otherwise strong support from all other Committee representatives for
these amendments.
Drink driving reforms
The government commenced a public consultation process in March 2010
examining possible interventions aimed at reducing drink driving. The
consultation process involved three elements. Firstly, a public discussion
paper was released outlining a wide range of potential drink driving
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Transport and Other Legislation Amendment Bill 2011
countermeasures on the Queensland Government's Get Involved website
together with an online survey that elicited over 1 000 responses. Secondly,
two community forums were held on 4 and 5 May 2010, in Townsville and
Brisbane respectively. Thirdly, focus groups and one-on-one interviews
were undertaken with a range of drink driving offenders throughout
Queensland.
The drink driving amendments contained in the Bill received community
support in the online survey as follows:
· extend immediate licence suspension for drink driving offenders with
a blood/breath alcohol concentration greater than or equal to 0.10 -
72.72% support from respondents;
· extend the maximum time allowed to obtain a breath/blood specimen
for drink driving offences from two to three hours - 47.1% support
from respondents; and
· allow the arresting/detaining police officer to also conduct the breath
analysis for drink driving offences - 57.7% support from respondents.
Consistency with legislation of other jurisdictions
Taxi bailment agreements
Taxi services operate under bailment agreements in all states and
territories. In New South Wales, the bailment relationship is recognised
under the Industrial Relations Act (NSW) 1996. The act creates
enforceable conditions for taxi drivers and operators in the Sydney
Metropolitan District. Victoria and South Australia have non-regulated
approaches to bailment agreements. However, taxi bailment agreements
are highly regulated in Western Australia under a set pay in format.
Overhead wiring for light rail
Section 377R covers much the same issue as section 104R of the Transport
Administration Act 1988 (NSW). However, that Act limits compensation to
a greater extent than section 377R.
Drink driving reforms
All States and Territories, except Western Australia, have immediate
licence suspension for drink driving offences. Queensland, Tasmania and
the Northern Territory immediately suspend the licence of drivers
recording a blood/breath alcohol concentration of 0.15 or higher. New
South Wales and South Australia immediately suspend the licence of
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Transport and Other Legislation Amendment Bill 2011
drivers who record a blood/breath alcohol concentration of 0.08 or higher,
as does the Northern Territory for a second or subsequent offence. Victoria
suspends learner and provisional licence holders who record a
concentration of 0.07 or higher, and open licence holders at 0.10 or higher.
The Australian Capital Territory immediately suspends the licence of
drivers recording a blood/breath alcohol concentration of 0.10 or higher.
Protection for whistleblowers
Queensland has similar provisions for public interest disclosures in the
Transport Operations (Marine Safety) Act 1994, Transport Operations
(Marine Pollution) Act 1995, Biodiscovery Act 2004, Guardianship and
Administration Act 2000 and the Commission for Children and Young
People and Child Guardian Act 2000.
Similar provisions for public interest disclosures also exist in the
Commonwealth's Australian Transport Safety Investigation Act 2003 and
New South Wales' Rail Safety Act 2008. Victoria's Transport (Compliance
and Miscellaneous) Act 1983 also contains confidential reporting scheme
whistleblower protection.
Exemption of accredited railways
Other Australian jurisdictions have similar exemption provisions in their
Rail Safety legislative packages either contained in subordinate legislation
(New South Wales, Victoria, South Australia, Northern Territory) or by the
Minister authorising a notice exempting those operators (Western Australia
and Tasmania).
Notes on provisions
Part 1 Preliminary
Clause 1 states that, when enacted, the Act will be cited as the Transport
and Other Legislation Amendment Act 2011.
Clause 2 provides that:
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Transport and Other Legislation Amendment Bill 2011
· Sections 77, 89, 90 and 91 commence on 1 August 2011;
· Section 80, to the extent it inserts chapter 4A, 82 to 88 and 91, to the
extent it inserts section 191, commences on 1 September 2011;
· The following provisions commence on a day to be fixed by
proclamation:
(a) part 4;
(b) section 72;
(c) sections 100(1) to (10), 101 to 110, 113 and 114;
(d) part 11.
Part 2 Amendment of Adult Proof of
Age Card Act 2008
Clause 3 states that this part amends the Adult Proof of Age Card Act 2008.
Clause 4 amends section 30 (Restricted release of information in APA
register) to provide that the section deals only with the release of
information in writing.
Clause 5 inserts a new section 30A (Restricted oral release of information).
Section 30A(1) authorises the chief executive to orally release certain
information to a person. The information that may be released is
information kept in the APA register maintained under the Act about the
person's adult proof of age card.
Subsection (2) provides that the chief executive may only release the
information if satisfied that the person is the person to whom the
information relates.
Part 3 Amendment of Building Act 1975
Clause 6 states that this part amends the Building Act 1975.
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Transport and Other Legislation Amendment Bill 2011
Clause 7 amends section 246W (Definitions for ch 8B) to clarify that
franchised roads can be declared as transport noise corridors under chapter
8B. Franchised roads will be included in chapter 8B by omitting the
definition of road, and inserting a new definition of road that includes `a
local government franchised road within the meaning of the Transport
Infrastructure Act', and by omitting the definition of State-controlled road,
and inserting a new definition of State-controlled road that includes `a
franchised road within the meaning of the Transport Infrastructure Act'.
Clause 8 amends section 246Z (Designation of transport noise corridor -
transport chief executive) to clarify the noise levels that apply when
designating either railway land or a State-controlled road as a transport
noise corridor. Subsection (2)(b) will be separated into (i) and (ii),
clarifying that the noise level has to be at least 70db(A) for railway land
and at least 58db(A) for State-controlled roads, in order to be designated as
a transport noise corridor.
Part 4 Amendment of Criminal Code
Clause 9 states that this part amends the Criminal Code.
Clause 10 amends section 328A (Dangerous operation of a vehicle) by
inserting a reference to the new middle alcohol limit offence in section
79(1F) of the Transport Operations (Road Use Management) Act 1995 in
the definition of prescribed offence. This will ensure that prior convictions
for the middle alcohol limit offence are considered in the same manner as
other drink driving convictions, for the purpose of sentencing an offender
under section 328A.
Part 5 Amendment of Electrical Safety
Act 2002
Clause 11 states that this part amends the Electrical Safety Act 2002.
Clause 12 amends section 7 (Application of Act to railways), inserting
references to light rail.
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Transport and Other Legislation Amendment Bill 2011
Clause 13 inserts new definitions for light rail and light rail manager into
Schedule 2.
Clause 13 also omits and inserts a new paragraph (c) in the definition of
electricity entity, to include a reference to a `light rail manager for a light
rail, that is exempted by the Electricity Act, section 20Q or 20QA'. This is
necessary because:
· section 66 of the Electrical Safety Act 2002 refers to entities declared
to be a prescribed electricity entity under the Regulation;
· section 165 of the Electrical Safety Regulation 2002 states that
prescribed electricity entities include those named in the schedule and
those persons who are an electricity entity under paragraph (c) of the
definition in the Act; and
· light rail manager and light rail operators are not presently named in
the schedule as electrical entities.
By including light rail manager in paragraph (c) of the definition of an
electricity entity in the Electrical Safety Act 2002, a light rail manager will
be a prescribed electricity entity under the Regulation. The result is that the
light rail manager must have and give effect to a safety management
system.
Part 6 Amendment of Electricity Act
2002
Clause 14 states that this part amends the Electricity Act 1994.
Clause 15 inserts new section 20QA (Exemptions for light rail franchisees
and light rail managers) to provide:
· that a light rail franchisee or a light rail manager are exempted from
sections 88A (Prohibition on operating supply network unless
authorised) in relation to the supply and sale of electricity used either
in connection with the building or use of electrical installations and
other works required under a light rail franchise agreement or for
powering rolling stock and railway signals required under a light rail
franchise agreement; and
· a definition for light rail franchisee, to mean a franchisee under a light
rail franchise agreement.
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Transport and Other Legislation Amendment Bill 2011
The amendment will allow electricity supply arrangements for a light rail
project to be implemented without the light rail franchisee or light rail
manager requiring licences under the Electricity Act 1994 and brings light
rail into line with heavy rail.
Clause 16 amends section 102 (Works on roads), as an electricity provider
may have to comply with section 102(1) of the Electricity Act 2002 over
land occupied by light rail to effect works. For example, the relocation of
electrical public utility plant necessary for construction of light rail in a
road environment. Chapter 10, division 3 and section 362 of the Transport
Infrastructure Act 1994 may also apply to electricity provider works over
land occupied by light rail. Amended section 102 requires the road
authority to consult with the light rail operator to provide a consistent
approach where light rail is being constructed or is already constructed.
Clause 17 contains amendments to section 106 (Public entity may require
electricity entity to alter position of works) to exclude light rail from the
meaning of publicly controlled place. Currently, the definition potentially
includes light rail. Therefore the light rail could be under the control of
public entities, but not the light rail franchisee. This is not a suitable
arrangement for infrastructure being delivered under a light rail franchise
agreement where the infrastructure ownership and management rights may
be vested in the franchisee. The effect of the amendment is to exclude light
rail land from the definition of publicly controlled place, which means that
the Transport Infrastructure Act 1994 will apply the protective mechanisms
and public utility plant provisions.
Clause 18 amends section 109 (Works impairing railway signalling or
communication lines) by inserting new subsection (4) to clarify the term
railway operator. Subsection (4) states that railway operator includes a light
rail manager and light rail operator for a light rail. New subsection (4) will
prohibit an electricity entity from building or carrying out works in a way
that impairs use of the light rail signalling and communication lines. This
provision will apply to light rail in the same way as it does to heavy rail.
Because this section refers to existing equipment, it will only have effect
after the infrastructure has been completed.
Clause 19 amends section 110 (Building by railway operator of signalling
or communication line likely to be affected by electricity entity's works
etc.) by inserting new subsection (3) to clarify the term railway operator.
Subsection (3) states that railway operator includes a light rail manager and
light rail operator for a light rail. New subsection (3) will impose
requirements on the light rail manager and light rail operator where new
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Transport and Other Legislation Amendment Bill 2011
signalling or communication lines are to be built, in the same way as
currently exists for heavy rail.
Clause 20 amends schedule 5 (Dictionary) to refer to the Transport
Infrastructure Act 1994 definitions of light rail, light rail manager and light
rail operator, for the sake of consistency.
Part 7 Amendment of Environmental
Protection Act 1994
Clause 21 states that this part amends the Environmental Protection Act
1994.
Clause 22 amends schedule 1 (Exclusions relating to environmental
nuisance or environmental harm) and is a consequential amendment to new
section 477G of the Transport Infrastructure Act 1994, inserted by clause
65 of this Bill.
Part 8 Amendment of Tow Truck Act
1973
Clause 23 states that this part amends the Tow Truck Act 1973.
Clause 24 amends section 19H (Restricted release of information) to
provide that the section deals only with the release of information in
writing.
Clause 25 inserts a new section 19I (Restricted oral release of particular
information). Section 19I(1) authorises the chief executive to orally release
certain information to a person. The information that may be released is
information kept under the Act about the person's tow truck driver's
certificate or assistant's certificate.
Subsection (2) provides that the chief executive may only release the
information if satisfied that the person is the person to whom the
information relates.
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Transport and Other Legislation Amendment Bill 2011
Part 9 Amendment of Transport
Infrastructure Act 1994
Clause 26 states that this part amends the Transport Infrastructure Act
1994.
Clause 27 amends section 30 (Obligations in carrying out of works or
operation of roads by the chief executive) by replacing the phrase `price
competitive' with `value for money'. This will bring the Act into line with
the Queensland's State Procurement Policy, which lists `seeking value for
money' as one of its objectives.
Clause 28 amends section 84A (Declaration of land as State toll road
corridor land).
Currently, section 84A allows the Minister to declare certain land tenures
to be State toll road corridor land. Section 84C provides that land declared
by the Minister under section 84A immediately becomes unallocated State
land. Subsection 84C(4) then provides that a perpetual lease must issue to
the State and subsections 84C(6) and (6A) allow the State to sublease this
land to another person and for further sub subleases to be entered into.
These provisions facilitate the lease of land by the State to a private
proponent for the purpose of constructing, operating or maintaining a toll
road.
The amendments in this clause, and the amendments in clauses 29 and 30,
apply where additional land is declared to be State toll road corridor land
(the additional land) and this land is needed to increase the area of land
previously declared to be State toll road corridor land (the original land). In
this situation, the perpetual lease of the original land (the existing perpetual
lease) will be amended to include the additional land (the amended
perpetual lease). The additional land may also be included in any existing
subleases or sub-subleases of the original land under section 84C(6) or
(6A) (the existing leases). This will avoid the need for separate leases to be
entered into for the additional land and simplify the administrative
processes for amending the leases.
Clause 28 inserts new sections 84A(6A) and (6B). Section 84A(6A)
provides that the area of the original land may be increased by a subsequent
declaration under section 84A(1) of additional land. Section 84A(6B)
provides for the following:
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Transport and Other Legislation Amendment Bill 2011
· the Minister is not required to state the terms of the perpetual lease
when declaring the additional land to be State toll road corridor land;
· the terms of the amended perpetual lease are the terms that applied to
the existing perpetual lease immediately before the additional land
was declared to be State toll road corridor land;
· the declaration of the additional land as State toll road corridor land
must state the lease reference number for the existing perpetual lease
and, if the additional land is to be included in an existing lease, the
declaration must also state the dealing number for the relevant lease.
Clause 29 amends section 84C (Effect on land of State toll road corridor
land declaration) to make that section subject to section 84CA where the
Minister declares additional land to be State toll road corridor land.
Clause 30 inserts a new section 84CA (Effect of declaration of additional
State toll road corridor land on leases) which sets out the effect on leases if
the Minister declares additional land to be State toll road corridor land.
Despite section 84C(4), section 84CA(2)(a) provides that the existing
perpetual lease is taken to have been amended to include the additional
land under the Land Act 1994. Section 84C(5) applies to the amended
perpetual lease. However, for section 84C(5)(c), sections 84CA(2)(b) and
(c) provide that the amended perpetual lease is subject to any interests in
the original land or the additional land which were continued in relation to
the lease under section 84A(6)(a). Further, for section 84C(5)(d), sections
84CA(2)(b) and (d) confirm that the amended perpetual lease is on the
terms mentioned in section 84A(6B)(b).
Section 84CA(2)(e) provides that the additional land may be included in an
existing lease under section 84C(6) or (6A). If this is to happen, sections
84CA(3)(a) and (4) provide that the existing lease is taken to be amended
to include the additional land. For section 84C(8)(b), an amended lease
under section 84C(6) is subject to any interests continued under section
84A(6)(b) in the additional land or the original land for the leases. Section
84CA(5)(c) provides that the amended leases operate as if they had been
originally issued or executed as amended.
Section 84CA(2)(e) also clarifies that the ability to lease the additional land
under sections 84C(6) or (6A) is not limited by this amendment. This
allows for separate leases of the additional land to be entered into under
those sections if required. This may be necessary if the additional land is to
be leased to a person other than the person who holds a lease under section
84C(6) or (6A) for the original land.
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Transport and Other Legislation Amendment Bill 2011
Section 84CA(5)(a) provides that if an existing lease is to be amended, the
registration of the amended sublease does not require the endorsement of
the Minister administering the Land Act 1994 under section 336(3) and (4)
of that Act.
The chief executive must lodge documents necessary to give effect to the
amended leases in the leasehold land register (section 84CA(2)(a)(ii) and
(5)(b)). No fee is payable for lodging these documents (section 84CA(6)).
Clause 31 amends section 105GA (Declaration). Section 105GA currently
provides that if a local government which has an approved tollway project
requests the Minister to declare a local government tollway, the Minister
may declare a local government franchised road or local government
tollway corridor land to be a local government tollway. Therefore, unless
the tollway is subject to a franchise agreement, a local government tollway
corridor land declaration must be made before the local government
tollway declaration. The administrative requirements for a local
government tollway corridor land declaration are complex and have the
potential to delay the commencement of operations on local government
tollways.
This amendment provides that land or part of land which is the subject of
an approved tollway project and which is land mentioned in sections
105H(1)(a) to (e) may also be declared to be a local government tollway.
Clause 32 amends section 105H (Declaration of land as local government
tollway corridor land).
Clause 32(1) removes the current restriction on declaring a State-controlled
road to be a local government tollway corridor land.
Clause 32(3) extends the categories of land that may be the subject of a
local government tollway corridor land declaration to include non-freehold
land under the Land Act 1994 on or within which road or rail transport
infrastructure is situated. The amendment in clause 32(2) is consequential
to this amendment.
The amendment in clause 32(4) removes an obligation for the Minister to
declare land acquired by the local government to be local government
tollway corridor land, if requested to do so by the local government. There
is no obligation to make the declaration in relation to other categories of
land which may be the subject of the declaration. This amendment, and the
amendment in clause 32(5), aligns the requirements for local government
acquired land with other categories of land which may be the subject of the
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Transport and Other Legislation Amendment Bill 2011
declaration. Clause 32(7) makes amendments that are consequential to the
amendment in clause 32(4).
Currently section 105H(4) provides that the Minister may only make a
declaration of local government tollway corridor land if the local
government has complied with all conditions and legislative requirements
that apply to the approved tollway project or the local government tollway.
Clause 32(6) amends section 105H(4) to remove this requirement and to
provide instead that the Minister must have regard to whether the local
government has complied with the conditions applying to the approved
tollway project or the local government tollway and other relevant matters
in deciding whether to make the declaration. This will allow the Minister to
make the land declaration if it is appropriate in the circumstances including
where all conditions have not been complied with.
The amendment in clause 32(8) amends section 105H by inserting new
sections 105H(10) and (11).
Currently, section 105H allows the Minister to declare certain land tenures
to be local government tollway corridor land. Section 105J provides that
land declared by the Minister under section 105H immediately becomes
unallocated State land. Section 105J(4) then provides that a perpetual lease
must issue to the State. The state must lease the land to the relevant local
government (section 105J(6)). Sections 105H(9) and (10) allow the local
government to sublease this land to another person and for further
sub-subleases to be entered into. These provisions facilitate the lease of
land by the State to the local government or a private proponent for the
purpose of constructing, operating or maintaining a tollway.
The amendments in clause 32(8) and the amendments in clauses 34 and 35
apply where additional land is declared to be local government tollway
corridor land (additional land) and this land is needed to increase the area
of land previously declared to be local government tollway corridor land
(the original land). In this situation, the perpetual lease of the original land
(the existing perpetual lease) and the lease of the land to the local
government (the existing local government lease) will be amended to
include the additional land (the amended perpetual lease and the amended
local government lease). The additional land may also be included in any
existing subleases or sub-subleases of the original land under section
105J(9) or (10) (the existing leases). This will avoid the need for separate
leases to be entered into for the additional land and simplify the
administrative processes for amending the leases.
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Transport and Other Legislation Amendment Bill 2011
Clause 32(8) inserts new sections 105H(10) and (11). Section 105H(10)
provides that the area of the original land may be increased by a subsequent
declaration under section 105H(3) of additional land. Section 105H(11)
provides for the following:
· the Minister is not required to state the terms of the perpetual lease
when declaring the additional land to be local government tollway
corridor land;
· the terms of the amended perpetual lease are the terms that applied to
the existing perpetual lease immediately before the additional land
was declared to be State toll road corridor land;
· the declaration of the additional land as local government tollway
corridor land must state the lease reference number for the existing
perpetual lease and the dealing number for the existing local
government lease;
· if the additional land is to be included in an existing lease, the
declaration must also state the dealing number for the relevant lease.
Clause 33 amends section 105I (Local government tollway corridor land
on rail corridor land). The amendments in this clause are consequential on
the amendment in clause 32(4).
Clause 34 amends section 105J (Effect on land of local government tollway
corridor land declaration) to make that section subject to section 105JAA
where the Minister declares additional land to be local government tollway
corridor land.
Clause 35 inserts a new section 105JAA (Effect of declaration of additional
local government tollway corridor land on leases) which sets out the effect
on leases if the Minister declares additional land to be local government
tollway corridor land.
Despite section 105J(4), section 105JAA(2)(a) provides that the existing
perpetual lease is taken to have been amended to include the additional
land for section 360A of the Land Act 1994. Section 105J(5) applies to the
amended perpetual lease. However, for section 105J(5)(c), sections
105JAA(2)(b) and (c) provide that the amended perpetual lease is subject to
any interests in the original land or the additional land which were
continued in relation to the lease under section 105H(9)(a). Further, for
section 105J(5)(d), sections 105JAA(2)(b) and (d) confirm that the
amended perpetual lease is on the terms mentioned in section 105H(11)(b).
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Transport and Other Legislation Amendment Bill 2011
For section 105J(6), section 105JAA(2)(e) provides that the existing local
government lease is taken to be amended to include the additional land.
Despite section 105J(8)(a), the terms of the amended local government
lease are the same as the terms of the existing local government lease
immediately before the additional land was declared to be local
government tollway corridor land (section 105JAA(2)(f)). For section
105J(8)(b) the amended local government lease is subject to any interests
continued in relation to the original land and the additional land (section
105JAA(2)(g)).
Section 105JAA(2)(h) provides that the additional land may be included in
an existing lease under section 105J(9) or (10). If this is to happen, section
105JAA(3)(a) provides that the existing lease is taken to be amended to
include the additional land. Section 105JAA(2)(h) also confirms that the
ability to lease the additional land under sections 105J(9) and (10) is not
limited by the amendment. This allows for separate leases of the additional
land to be entered into under those sections if required. This may be
necessary if the additional land is to be leased to a person other than the
person who holds a lease under section 105J(9) or (10) of the original land.
Sections 105JAA(2)(k) and 105JAA(3)(d) provide that the amended local
government lease and the amended leases operate as if they had been
originally issued or executed as amended. Sections 105JAA(2)(i) and
105JAA(3)(b) provide that the registration of the amended leases does not
require the endorsement of the Minister administering the Land Act 1994
under section 336(3) and (4) of that Act. The chief executive must lodge
documents necessary to give effect to all amended leases in the leasehold
register (sections 105JAA(2)(a)(ii), 105JAA(2)(j) and 105JAA(3)(c)). No
fee is payable for lodging these documents (section 105JAA(4)).
Clause 36 amends section 106 (Ways of achieving objectives) by amending
the objectives of the Act to include:
· new subsection 106(b)(iii), `allow rail transport infrastructure to be
constructed and maintained in an effective and efficient way'; and
· new subsection 106(b)(iv), `otherwise allow rail transport
infrastructure to be constructed and maintained in an effective and
efficient way'.
The effect of these amendments will be to align the objectives of the Act
for rail with the provisions already in place for road, busway and light rail.
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Transport and Other Legislation Amendment Bill 2011
Clause 37 amends section 108 (Purpose of pt 2) by omitting `railway
authorisation' and inserting `railway or the chief executive authorisation' in
its place.
Clause 38 amends section 109 (Definitions for pt 2) by inserting definitions
of authority and relevant person. These definitions have the effect of
including the chief executive in the provisions under part 2.
Clause 39 inserts new section 109A (Chief executive may enter land to
investigate potential rail corridor) to clarify that the chief executive has the
power to enter and investigate potential rail corridors. New section 109A
provides the chief executive with clearer powers in relation to rail transport
infrastructure, bringing rail into line with the provisions already in place
for road, busway and light rail. New section 109(5) clarifies that for the
purposes of section 109A, land does not include a structure or part of a
structure used as a residence.
Clause 40 amends section 115 (Investigator to issue associated person with
identification), omitting the references to `investigator' and inserting
references to `relevant person' in their place. This will have the effect of
clarifying that the chief executive, and not just an investigator, has powers
under section 115.
Clause 41 amends section 116 (Pretending to be an investigator etc.),
inserting new (c) and (d) to clarify that a person must not pretend to be the
chief executive or a person authorised by the chief executive.
Clause 42 amends section 117 (Investigator to take care in acting under
authority) by omitting the use of the word `investigator' throughout and
inserting `relevant person' in its place. Following the divestment of QR
Limited, this change was necessary in order to clarify that it is not just QR
investigators, but also the chief executive, who has powers under section
117.
Clause 43 amends section 118 (Compensation payable by investigator) by
omitting the use of the word `investigator' throughout and inserting
`relevant person' in its place. Following the divestment of QR Limited, this
change was necessary in order to clarify that it is not just QR investigators,
but also the chief executive, who has powers under section 118.
Clause 45 inserts new subsection (1A) into section 247 (Chief Executive
taken to be owner of rail corridor land and non-rail corridor land for
particular circumstances under the Planning Act). The new subsection
confirms that the chief executive is taken to be owner in instances where
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Transport and Other Legislation Amendment Bill 2011
evidence of a resource entitlement or resource allocation may be required
for a development application under the Sustainable Planning Regulation
2009.
Clause 46 amends section 249 (Railways on particular roads) by expanding
the definition of a relevant person to include the local government for a
local government road as well as defining a local government road as a
relevant road.
Clause 47 amends section 255 (Interfering with railway) to clarify a
railway manager's power to protect a railway from interference. Clause 47
inserts `in or on a railway corridor must not interfere with a railway under
the control of a railway manager unless' into subsection (1), clarifying that
the railway manager's powers can only be used in relation to interference
with a railway that is under the control of a railway manager and occurs in
or on the railway corridor itself. In order to correct a minor drafting error,
`railway's manager' is to be omitted from subsection (1)(a), with `railway
manager's' inserted in its place. Clause 47 amends subsection (1), inserting
new (c) `the interference is otherwise approved, authorised or permitted
under this Act or another Act'. This will clarify that interference can be
authorised not just under the provisions previously mentioned in subsection
(1)(b), but under the Transport Infrastructure Act 1994 or any other Act.
New subsection (6) inserts the definition of interfere with from schedule 6,
further clarifying that interference is only in relation to activities that occur
in or on a railway corridor. New subsection (6) also inserts a definition of
railway corridor, in order to clarify that section 255 relates to land
subleased to the railway manager under section 240, commercial corridor
land, future railway land under the control of a railway manager, rail tunnel
easement or a railway crossing.
Clause 48 amends section 260 (Works for existing railways) by inserting a
provision that confirms that a railway manager is not required to upgrade
drainage and fencing for a railway that existed on 1 July 1995 when an
owner or occupier of land adjoining a rail corridor changes the use of the
land.
Clause 49 amends section 262 (Application of the Land Act 1994) by
inserting words confirming that a concurrent lease is captured within the
provision. A definition of a concurrent sublease for the section is also
inserted.
Clause 50 amends section 303AB (Licence in relation to busway land or
busway transport infrastructure), clarifying the type of land that can be
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Transport and Other Legislation Amendment Bill 2011
classed as busway land for the purposes of this section. The amendments
also insert a definition of private agreement land for the busway chapter,
enabling the chief executive to enter into an agreement about busway
transport infrastructure with a person other than the State. This amendment
will achieve consistency with the light rail chapter and is required due to
the amendments to section 355A.
Clause 51 inserts new section 303AC (Compensation for licence granted
under s 303AB), providing a compensation regime for owners or occupiers
of land over which a busway licence is granted to compensate them for loss
or damage caused by the grant of licence.
This loss or damage is intended to cover actual loss or costs or proven
damage resulting from the grant of licence and is not intended to extend to
indirect damages, future economic or consequential loss. New section
303AC(6) limits compensation to that which would be appropriate under
resumption and is subject to any agreement with the chief executive. This
may include any agreement under section 300, the agreement contemplated
in the definition of private agreement land, a rental agreement or otherwise
under the provisions of an Act.
Clause 52 amends section 308 (Powers of chief executive for busway
transport infrastructure works contracts etc.) by replacing the phrase `price
competitive' with `value for money'. This will bring the Act into line with
Queensland's State Procurement Policy, which lists `seeking value for
money' as one of its objectives.
Clause 53 amends section 316 (Definitions for div 4) by amending the
definition of busway land for chapter 9, part 4, division 4 (public utility
plant), originally inserted by Transport and Other Legislation Amendment
Act (No. 2) 2010. The amendments will clarify the type of land that is
classified as busway land for the purposes of the public utility plant
provisions. Section 316 allows the more effective management of public
utility plant during construction and operation of busway, so that it is not
reliant on the declaration of busway land under section 302. The
amendments will allow the management of public utility plant on state land
or private agreement land on which busway transport infrastructure is, or is
proposed to be situated. The definition of State land inserted into schedule
6 by clause 65 also facilitates the intent of section 316.
Clause 54 amends section 352 (Definitions for pt 3) by inserting `or a local
government road' into paragraph (b) of the definition of road for chapter
10, part 3 (Establishment of light rail). This will have the effect of
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Transport and Other Legislation Amendment Bill 2011
including local government roads, as well as State-controlled roads, under
the definition of road for part 3. This facilitates the establishment of the
Gold Coast Rapid Transit light rail project where the light rail will travel
over both State-controlled roads and roads controlled by the local authority.
Clause 55 amends section 354 (Effect on land of light rail declaration),
providing for a simplified process for adding parcels of light rail land to a
perpetual lease as they are declared under section 353.
Clause 56 will amend section 355A (Licence in relation to light rail land or
infrastructure) in order to provide a more convenient and flexible tenure
arrangement than provided for under the Land Act. The amendments will
minimise administrative burdens for the State in the administration of
transport land. Subsection (3A) provides a process to record the
cancellation or surrender of the licence in the Titles Registry. Subsection
(8) puts beyond doubt that the Land Act 1994 does not apply to licences
granted under section 355A. Subsection (9) clarifies the original intent of
section 355A, that all state land could be available for the establishment of
transport infrastructure. This enables the establishment of a continuous
corridor for delivery for the light rail franchisee which does not depend on
the underlying land tenure. In a linear transport project, there is a high
probability that the underlying tenure could be land over which no tenure
exists (for example, unallocated state land, road or watercourse). Section
355A licences make it possible for the State to deliver a consistent corridor
for a public private partnership, such as the Gold Coast Light Rapid light
rail franchise. Subsection (9) also inserts a definition of private agreement
land for the section, as land on which infrastructure may be established, to
recognise that the state enters into agreements with private land owners (for
example, when transfers to the state are pending or there are retitling
delays). The private land owner must agree to the establishment of the
infrastructure on the land, as well as the granting of the licence by the chief
executive under section 355A to a third party).
Clause 57 inserts a new definition of State land into schedule 6
(Dictionary) that supports sections 303AB, 316, 355A and 364. The
definition clarifies the types of tenures that comprise State land, and
includes those lands over which third parties may have some rights of
occupancy or permissions. The definition is exhaustive because of the
complexity of tenure of State land and the overlay of third party rights, for
example, declarations for toll roads. However, state land does not include
land held by the state on behalf of private third parties
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Transport and Other Legislation Amendment Bill 2011
Clause 57 inserts new section 355B which provides a compensation regime
for owners or occupiers of land over which a light rail licence is granted to
compensate them for loss or damage caused by the grant of licence.
This loss or damage is intended to cover actual loss or costs or proven
damage resulting from the grant of licence and is not intended to extend to
indirect damages, future economic or consequential loss. New section
355B(6) limits compensation to that which would be appropriate under
resumption and is subject to any agreement with the chief executive. This
may include any agreement under section 300, the agreement contemplated
in the definition of private agreement land, a rental agreement or otherwise
under the provisions of an Act.
Clause 58 omits section 358(7).
Clause 59 amends section 360A (Powers of chief executive for light rail
transport infrastructure works contracts etc.) by replacing the phrase `price
competitive' with `value for money'. This will bring the Act into line with
Queensland's State Procurement Policy, which lists `seeking value for
money' as one of its objectives.
Clause 60 amends section 364 (Definitions for div 3) by inserting a new
definition of light rail land, originally inserted by Transport and Other
Legislation Amendment Act (No. 2) 2010. The amendments will clarify the
type of land that is classified as light rail land for the purposes of the public
utility plant provisions. Section 364 allows the more effective management
of public utility plant during construction and operation of light rail so that
it is not reliant on the declaration of light rail land under section 353. The
amendments will allow the management of public utility plant on state land
or private agreement land on which light rail transport infrastructure is, or
is proposed to be situated. The definition of State land inserted into
schedule 6 by clause 65 also facilitates the intent of section 364.
Clause 61 omits chapter 10, part 4, division 4A, subdivision 3 (Interface
management). The interface management regime is being moved from the
light rail chapter to new general chapter 15A.
Clause 62 amends section 377R (Limited compensation for easements etc.
or damage relating to overhead wiring for a light rail) by omitting the
definition of light rail overhead wiring damage and inserting a new
definition of light rail overhead wiring damage to clarify that it means
physical damage to a structure caused by the construction of or affixation
of overhead attachments for a light rail. Compensation arising from the
affixation of overhead attachments is limited to physical damage to the
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Transport and Other Legislation Amendment Bill 2011
structure. This puts the responsibility onto the chief executive to ensure
physical damage is remedied.
Clause 63 inserts new chapter 15A (Transport interface management) in
order to extend the interface management provisions that are currently in
place for light rail to busway.
New section 475ZF (Purpose of ch 15A) establishes that the purpose of
Chapter 15A is to provide a regime for dealing with transport interface
issues in interface management areas.
New section 475ZG (Definitions for ch 15A) establishes, for chapter 15A,
definitions of transport interface, transport interface agreement, transport
interface issue, transport interface management area and transport
interface object.
New section 475ZH (Meaning and scope of transport interface agreement)
establishes that a transport interface agreement may provide for a matter by
applying, adopting or incorporating a matter contained in another
document (with or without modification). This recognises that parties to a
transport interface agreement may be bound by other requirements, such as
Building Management Statements, easements and precinct emergency
plans.
New section 475ZI (Declaration of transport interface management area)
provides that the chief executive may declare, by gazette notice, land or
part of land to be a transport interface management area. Subsection
475ZI(2) requires the chief executive to consult before a declaration can be
made. Subsections 475ZI(3) and (4) establish the arrangements for
identifying land declared as a transport interface management area in a
gazette notice. Subsection 475ZI(5) sets out the definition of transport
interface arrangements.
New section 475ZJ (Particular persons may enter into transport interface
agreement) identifies the categories of persons who may enter into a
transport interface agreement.
New section 475ZK (Failure to enter into transport interface agreement)
establishes the process the chief executive must follow in the event of a
failure to enter into an interface agreement. The process includes the issue
of a preliminary notice and direction and suggested terms for inclusion in
the transport interface agreement. The maximum penalty for subsection
475ZK(6) of 60 penalty units is consistent with section 377N (Failure to
enter into light rail interface agreement) of the Transport Infrastructure Act
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Transport and Other Legislation Amendment Bill 2011
1994 and section 77 (Chief executive may give notice about failure to enter
into interface agreement) of the Transport (Rail Safety) Act 2010.
New section 475ZL (Direction about arrangement that is to apply) is an
enforcement provision for a failure to comply with a preliminary notice or
direction under section 475ZK. The maximum penalty for non-compliance
with a direction is 200 penalty units. This is consistent with section 377O
(Direction about arrangement that is to apply) of the Transport
Infrastructure Act 1994 for light rail, and section 78 (Chief executive may
give direction about arrangement that is to apply) of the Transport (Rail
Safety) Act 2010.
New section 475ZM (Guidelines about transport interfaces etc.) provides
that the chief executive may make interface guidelines and requires any
such guidelines to be published on the internet and made available for
public inspection. The guidelines are intended to provide information on
interface risks and measures that might be implemented to deal with these
risks. A guideline may also provide general information regarding the form
and layout of an interface management agreement.
Clause 64 inserts a note in section 477C and refers to particular provisions
of the Land Act 1994 and concurrent subleases. The note identifies that a
concurrent sublease is granted for declared projects under the
Infrastructure Investment (Asset Restructuring and Disposal) Act 2009.
This clause is consequential to clause 49.
Clause 65 inserts new section 477F (Watercourse crossings) to clarify the
power of the chief executive to provide a continuous corridor over a
watercourse.
New subsection 477F(1) states that the chief executive may survey and
resurvey, construct, augment, improve, maintain, operate, replace, name
and number watercourse crossings, subject to the Transport Infrastructure
Act 1994 or another Act.
Sections 29(4) and 45 of the Transport Infrastructure Act 1994 are relevant
to allow the local government to maintain and operate watercourse
crossings and for the exercise of local laws.
Subsection 477F(2) sets out the definitions for section 477F, clarifying that
transport infrastructure not only includes the definition of transport
infrastructure under Schedule 6, but also active transport infrastructure
(within the meaning of the Transport Planning and Coordination Act 1994,
section 8A(3). Subsection (2) further clarifies that watercourse means land
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Transport and Other Legislation Amendment Bill 2011
that is the property of the State under the Land Act 1994, sections 9, 13(1)
or (2), capturing both tidal and non-tidal land. Subsection (2) also states
that the meaning of watercourse crossing is transport infrastructure that is
or is proposed to be over, under, on or in a watercourse. A watercourse
crossing does not, however, include a river crossing under the City of
Brisbane Act 2010, section 77. New section 477F does not conflict with
section 77 of the City of Brisbane Act 2010, as section 477F relates to
infrastructure delivered by the department, and the City of Brisbane Act
relates to river crossings delivered by the Brisbane City Council as local
roads.
This provision does not detract from the provisions of section 39 of the
Transport Infrastructure Act 1994 (Watercourses and road works).
Watercourse crossings have also been included in the definition of State
land in schedule 6 (Dictionary), which will provide the ability to extend
and continue the transport corridor and any licences over watercourses.
Clause 66 contains new section 578 (Declaration and validation for
watercourse crossings), a transitional provision which clarifies that the
chief executive has, and always had, the powers conferred on the chief
executive under section 477F, and the legislative authority to construct
watercourse crossings.
Clause 65 also inserts section 477G (Chief executive may approve
compliance management plan). Major linear infrastructure projects are
required to obtain or comply with requirements of various standards,
approvals, permits and authorities under transport or other legislation or
local laws administered by a number of agencies and these may vary over
the length of the infrastructure corridor.
These are time consuming to obtain and sometimes duplicate the same
issues.
New section 477G will rationalise and streamline these processes by
providing for a compliance management plan that establishes a regime for
compliance with the various laws that regulate construction and
infrastructure project activities. For example, projects necessarily involve
activities which are required to be conducted outside of normal working
hours for access, traffic or safety reasons. Such activities are the subject of
default noise standards under the Environment Protection Act 1994. This
Act provides for default standards, but there is no mechanism for approval
for activities which fall outside these standards. As a result, constructors
would breach that Act.
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Transport and Other Legislation Amendment Bill 2011
The department, constructors and franchisees require certainty about
approvals for a more cost and time efficient project delivery. New section
477G facilitates a more streamlined approach to compliance matters which
will result in improvements in the cost, timeliness and quality of projects
being delivered to or by the State. Compliance management plans will
allow the department to assess construction tenders for compliance matters.
Subsection 477G(1) states that 477G applies if a licence is, or is proposed
to be, granted to a person (the relevant person) by the chief executive under
the Transport Infrastructure Act 1994, to facilitate establishment and
construction of transport infrastructure (for example, licences issued under
section 355A of the Transport Infrastructure Act 1994).
Subsections (2) and (3) provide that the chief executive may request that
the relevant person submit a plan (the compliance management plan), or
consent to a plan that the relevant person has submitted. This allows
flexibility in negotiation during the bid and evaluation phase of major
projects.
Subsection (4) provides that a compliance management plan may comprise
one or more plans and address more than one compliance matter. For
example, in the normal course or preparing for construction, a person may
prepare a construction management plan. Sometimes, the preparation of a
plan is required as part of the tender process. This plan may include the
ways that the relevant person will be complying with environmental
nuisance and requirements for traffic management and road closures
simultaneously. Rather than making separate applications to different
agencies for the same activity, this matter can be included in the
compliance management plan.
Subsection (5) provides for approval of a compliance management plan if
the chief executive is satisfied that the plan addresses the compliance
matter or matters and after consultation with the agency that administers
the compliance matter.
Subsection (6) provides that the chief executive gives notice of the approval
of the plan with commencement and expiry dates and the approved
compliance matter or matters. Subsections (6)(c) obviates the necessity for
the relevant person to apply for the approvals that would normally be
required for the approved compliance matters.
Subsection (7) deems compliance with the relevant law if the relevant
person complies with the aspects of the approved compliance plan that
satisfy the requirements of the relevant law for the approved compliance
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Transport and Other Legislation Amendment Bill 2011
matter. For example, if the approved compliance matter is road closure for
construction purposes, and if all aspects of traffic management and safety
as outlined in the plan are complied with, the relevant person is deemed to
have complied with the relevant law.
Conversely, if a relevant person does not comply with an approved
compliance matter, the relevant law applies. This allows the relevant
administering authority to enforce the relevant law. Likewise, if a
compliance matter is not stated as an approved compliance matter, then the
relevant person must obtain approval or otherwise address the compliance
matter.
Subsection (8) provides definitions for the terms introduced and used under
section 477G.
The expression "for a licence" is not to be read as implying that the
requirements to satisfy compliance matters are conditions of the licence,
but rather, the activities for which the licence may be granted.
Clause 66 inserts transitional provisions for new section 477F
(Watercourse crossings), section 255 (Interfering with railway), chapter
15A (Interface management) and section 485 (Internal review of approvals
for interfering with railway).
As mentioned above, clause 66 will insert new section 578 (Declaration
and validation for watercourse crossings) to clarify that the chief executive
has, and always had, the powers conferred on the chief executive under
section 477F.
New section 579 (Interfering with railway) will clarify that the amended
section 255 will apply to any approvals sought, but not finally decided
before the new section 255 commenced. This will capture any outstanding
approvals under the newly amended section 255, rather than under the
previous section 255.
New section 580 (Interface management) inserts transitional provisions for
the transport interface management regime in new chapter 15A. New
section 580 will clarify that a declaration of a light rail interface
management area under repealed section 377L that is in effect immediately
before the commencement of the new chapter 15A is taken to be a transport
interface management area under new chapter 15A. Similarly, new section
580 states that notices etc. given under the previous light rail interface
regime in chapter 10 are taken to have been given under the new general
regime in chapter 15A.
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Transport and Other Legislation Amendment Bill 2011
New section 581 will clarify that the internal review provisions in sections
485 apply to a railway manager's refusal of an approval under section
255(1)(a) that was granted on or after the commencement of the bill. Such
an approval is taken to be an original decision, even if approval was first
sought before section 581 commenced. The review provisions under part 5
of the Transport Planning and Coordination Act 1994 will also apply to
review of section 255 decisions.
Clause 67 amends schedule 3 (Reviews and appeals) by inserting review
and appeal provisions to the Queensland Civil and Administrative Tribunal
(QCAT) review power for section 255(1)(a) and (2).
Clause 68 amends schedule 6 (Dictionary) by omitting the definitions of
interfere with a railway, light rail interface, light rail interface agreement,
light rail interface issue and light rail interface management area and
insert definitions for additional State toll road corridor land, additional
State toll road corridor land declaration, additional local government
tollway corridor land, additional local government tollway corridor land
declaration, appropriate register, dealing number, lease reference number,
light rail operator, original local government tollway corridor land,
original State toll road corridor land, relevant person, railway crossing,
state land, transport interface, transport agreement, transport interface
issue, transport interface management area and transport interface object
and watercourse crossing. Subsection (3) omits `section 377J' from item
2(b) in the definition of light rail land, inserting `section 475ZG' in its
place, to reflect the omission of the light rail interface regime in chapter 10
and the insertion of a transport interface regime in chapter 15A.
Subsections (5) and (6) are amended to remove reference in the definition
of rollingstock of a light rail vehicle and light rail respectively.
Part 10 Amendment of Transport
Operations (Marine Safety) Act
1994
Clause 69 states that this part amends the Transport Operations (Marine
Safety) Act 1994.
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Transport and Other Legislation Amendment Bill 2011
Clause 70 amends section 63I (Restricted release of information) to
provide that the section deals only with the release of information in
writing. Clause 69(2) omits section 63I(7).
Clause 71 inserts a new section 63J (Restricted oral release of particular
information). Section 63J(1) authorises the chief executive to orally release
certain information to a person. The information that may be released is
information kept under the Act about the person's marine licence or marine
history.
Subsection (2) provides that the chief executive may only release the
information if satisfied that the person is the person to whom the
information relates.
Clause 72 amends section 202E (Other limitations on ordering a restricted
licence) to ensure that an application for a restricted licence under section
202D must not be granted if the person was convicted of a middle alcohol
limit offence and the person was a person to whom the no alcohol limit
applied.
Clause 73 amends schedule 6 (Dictionary) by inserting the definition of
marine history which had previously been located in section 63I.
Part 11 Amendment of Transport
Operations (Passenger
Transport) Act 1994
Clause 74 states that this part amends the Transport Operations (Passenger
Transport) Act 1994.
Clause 75 amends section 12 (What is operator accreditation) to exclude
light rail operators from the requirement to hold operator accreditation on a
similar basis to that currently in place for rail operators. The requirement
for light rail operators to hold operator accreditation is unnecessary as
these operators are required to comply with the Transport (Rail Safety) Act
2010, which accredits rail operations, including light rail operators.
Clause 76 amends section 24 (What is driver authorisation) to exclude
drivers of a service using a fixed track vehicle provided by a light rail
operator from the requirements to hold driver authorisation on a similar
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Transport and Other Legislation Amendment Bill 2011
basis to that currently in place for drivers of fixed track vehicles provided
by railway operators. The requirement for light rail drivers to hold driver
authorisation is unnecessary as these drivers are required to comply with
the Transport (Rail Safety) Act 2010 which accredits rail operations,
including light rail operations.
Clause 77 amends section 28B (Driver authorisation-category B driver
disqualifying offences) and inserts new subsections. Subsection (1) inserts
new subsections (3A), (4A), (4B) and 5(A).
New subsection (3A) will mean that the chief executive will only be
required to seek the Commissioner's advice on driver disqualifying
offences that are also offences under the Commission for Children and
Young People and Child Guardian Act 2000, that is, those offences that the
Commissioner considers for granting a blue card. The exceptional cases of
all other category B offences, such as dangerous operation of the vehicle
and unlawful trafficking in weapons) will be considered only by the chief
executive.
Current subsection (4) requires the chief executive to ask the
Commissioner to Children and Young People and Child Guardian (the
Commissioner) whether an exceptional case exists.
New subsection (4A) allows the chief executive to give the Commissioner
the information, including a person's written representations about their
category B driver disqualifying offence and any other information the chief
executive reasonably considers necessary for the Commissioner to consider
whether an exceptional case exists.
New subsection (4B) provides that the chief executive is taken to have
made a request to the Commissioner under subsection (4) as to whether the
Commissioner considers an exceptional case exists if the online validation
service on the Commissioner's website confirms that a person's blue card is
current.
New subsection (5A) provides that if the online validation service on the
Commissioner's website confirms that a person's blue card is current the
Commissioner is taken to have advised the chief executive that an
exceptional case exists.
Subsection (2) inserts new wording into subsection (6) to provide that
without limiting the chief executive's power to take exclusion action, if the
chief executive requests the advice of the Commissioner, the chief
executive must take the advice of the Commissioner into account and can
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Transport and Other Legislation Amendment Bill 2011
not be satisfied that an exceptional case exists if the Commissioner advises
the chief executive that the Commissioner considers an exceptional case
does not exist. Subsection (3) inserts new subsection (9), which defines the
children's commission.
Clause 78 amends section 35H (Restricted release of information) to
provide that the section deals only with the release of information in
writing.
Clause 79 inserts new section 35I (Restricted oral release of particular
information) which allows the chief executive to release of relevant
information about the person in an oral form (subsection (1)). The
information that may be released is information kept under the Act about
the person's driver authorisation. Subsection (2) requires the chief
executive to be satisfied that the person is the person to whom the
information relates before the chief executive can release the information.
Clause 80 inserts new chapter 4A (Taxi service bailment agreements).
New section 35J (Purpose of ch 4A) states that the purpose of the new
chapter 4A is to provide minimum requirements for taxi service bailment
agreements.
New section 35K (Application of ch 4A) states that chapter 4A does not
apply to a taxi operator who employs a taxi driver.
New section 35L (What is a taxi service bailment agreement) defines what
a taxi service bailment agreement is for the purposes of chapter 4A.
Subsection (1) defines a taxi service bailment agreement as an agreement
between an accredited operator (of a taxi service licence) and an authorised
driver (of a taxi service). The subsection requires the agreement to be: in
writing, signed by both parties and to include information that is prescribed
under regulation for the agreement. Subsection (2) outlines that a taxi
service bailment agreement need not be limited to the bailment by the
accredited operator of a particular taxi providing a taxi service. This
subsection allows an operator and driver to have a taxi bailment agreement
that applies to a number of different taxis operated by the operator.
New section 35M (Accredited operator must ensure taxi service bailment
agreement entered into) makes it an offence (maximum penalty - 40
penalty units) for an operator of the taxi service if the operator does not
have a taxi bailment agreement in place with the taxi driver.
New section 35N (Accredited operator may only enter into taxi service
bailment agreement with set pay in arrangement in particular
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Transport and Other Legislation Amendment Bill 2011
circumstances) makes it an offence (maximum penalty - 40 penalty units)
for an operator of the taxi service to enter into a taxi service bailment
agreement with set pay in arrangements with a driver unless the driver has
held driver authorisation for at least 12 months consecutively or
cumulatively within five years before the agreement is entered into. New
subsection (2) defines set pay arrangement and set pay in amount.
New section 35O (Accredited operator must give authorised driver copy of
taxi service bailment agreement) makes it an offence (maximum penalty -
20 penalty units) for an operator if the operator does not give the taxi driver
a copy of the taxi bailment agreement that the operator has entered into
with the taxi driver.
New section 35P (Accredited operator must keep a copy of taxi service
bailment agreement) makes it an offence (maximum penalty - 20 penalty
units) for the operator if the operator does not keep a copy of the written
bailment agreement that has been entered into with the taxi driver for the
duration of the agreement and five years from the date it ends unless the
operator has a reasonable excuse.
New section 35Q (Authorised driver must not drive taxi unless taxi service
bailment agreement entered into) makes it an offence (maximum penalty -
10 penalty units) for a driver to drive a taxi for an operator if the driver does
not have a taxi bailment agreement with the operator.
New section 35R (Authorised person may request particular information)
allows an authorised person to ask an operator to give the authorised person
a copy of the bailment agreement that the operator has entered into with the
operator's taxi driver or statutory declarations that the operator has engaged
the driver as an employee.
Subsection (2) provides that when making a request for a copy of a taxi
service bailment agreement under subsection (1), the authorised officer
must warn the accredited operator it is an offence to fail to comply with the
request, unless the accredited operator has a reasonable excuse. Subsection
(3) makes it an offence (maximum penalty - 20 penalty units) for the
operator if the operator does not give the authorised person a copy of the
bailment agreement unless the operator has a reasonable excuse.
Subsection (4) provides examples of a reasonable excuse. Subsection (5)
inserts definitions for authorised person and statutory declaration.
Clause 81 inserts new section 101A (Application of standards to light rail
operators). New section 101A states that the standards do not apply to a
light rail operator in relation to a public passenger service provided using a
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Transport and Other Legislation Amendment Bill 2011
fixed track vehicle. The application of the standards to light rail operators is
unnecessary as these operators are required to comply with the Transport
(Rail Safety) Act 2010, which accredits rail operations, including light rail
operations.
Clause 82 amends section 129Y (Definitions for pt 4B). Subsection (1)
removes `definitions and replaces it with `definition'. Subsection (2)
removes the definitions for exclusion order, proper officer, public transport
network and relevant offence.
Clause 83 amends section 129ZA (Court may make exclusion order) by
replacing the criteria about which the court must be satisfied to make an
exclusion order when a court is convicting a person on a transport
indictable offence or a relevant offence. The amendment requires the court
to be satisfied that unless the order is made, the person would pose an
unacceptable risk to: the good order or management of the public transport
network; or the safety and welfare of persons using the public transport
network.
Clause 84 amends section 129ZB (Matters court must consider in deciding
whether to make exclusion order) by inserting a further criteria the court
must have regard to when making an exclusion order or the terms of an
exclusion order. The further criteria inserted is whether the person is
subject to a civil banning order.
This clause also amends the wording of subsection (b) by changing a
further criteria of the court considering whether the making of the order
would cause substantial hardship to the person or the persons family with
relevant examples. The amendment to subsection (b) changes the wording
`would cause substantial' to `is likely to cause undue' which changes the
way the court gives regard to personal circumstances of a respondent to
allow more flexibility in making an order or the terms of an order.
Clause 85 amends section 129ZC (Exclusion order to be explained if
person before the court) by inserting a new subsection (1A). Subsection
(1A) requires the person serving an exclusion order on a person who the
court has made the order on and who did not appear before the court when
the order was made to explain to the person: the purpose, terms and effect
of the exclusion order; and, consequences of contravening the exclusion
order; and that the exclusion order may be varied or revoked on application
of the person or an authorised person.
Clause 86 amends section 129ZD (Amendment or revocation of exclusion
order generally) to not allow a person to whom an exclusion order applies
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Transport and Other Legislation Amendment Bill 2011
to apply for an amendment or revocation of the order within three months
of making the order (rather than the current six months).
Clause 87 amends section 129ZG (Offence to contravene exclusion order).
Subsection (1) amends subsection (2)(c) which, without limiting what may
constitute a reasonable excuse for contravention of an exclusion order,
gives an example of a reasonable excuse. The amendment inserts
reasonably into clause (c)(iii) - the contravention of the exclusion order
relates reasonably to the changed circumstances in relation to which the
exclusion variation order is sought.
Clause 88 inserts new part 4C (Powers of court to make civil banning
orders for protecting the public or property) in chapter 11.
New section 129ZH (Definitions for pt 4C) provides the following
definitions for act of violence, authorised person, civil banning order,
interim civil banning order and respondent. The new definitions increase
clarity and effectiveness of the sections which make reference to these
definitions.
New section 129ZI (Purpose of pt 4C) provides for the making of civil
banning orders to help ensure the safety and security of persons using the
public transport network; preserve the amenity and condition of the public
transport network; and protect revenue from the public transport network.
New section 129ZJ (What is a civil banning order) states what a civil
banning order is. Subsection (1) states that a civil banning order is an order
made in relation to an adult person that prohibits the person, until the stated
date, from: using the public transport network for a period of not more than
12 months; or restricts, for a period of not more than 12 months, a person's
use of the public transport network in certain ways. These ways are: the
particular general route services or public transport infrastructure the
person may use; the days or times or periods of the day when the person
may use the public transport network; or the purpose for which the person
may use the public transport network.
Subsection (2) requires that the stated date in the civil banning order (that
is, the date until which the civil banning order applies) must be a date no
later than 12 months after an interim civil banning order or the civil
banning order is made. Subsection (3) allows the civil banning order to
take effect when the order is made, if the respondent or the respondent's
representative is present at the hearing; or, otherwise when the order is
served on the respondent.
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Transport and Other Legislation Amendment Bill 2011
New section 129ZK (Who may apply for a civil banning order) allows an
authorised person to apply to a Magistrates Court for civil banning order to
be made in relation to a respondent.
New section 129ZL (Application for a civil banning order) states the
requirements of a civil banning order application. Subsection (1) requires
the civil banning order application to state the:
· name of the respondent;
· details of the order sought;
· information necessary to satisfy the court of the matters mentioned in
section 129ZO(1) or (2);
· details of any previous application for a civil banning order and the
outcome of the application;
· affidavits in response to the application may be filed under section
129ZM; and
· application may, under section 129ZN(2), be decided in the
respondent's absence.
Subsection (2) requires that the application must be accompanied by any
affidavit the authorised person intends to rely on in the hearing of the
application. Subsection (3) requires that the application, with any
accompanying affidavit, must be filed in the court and served on the
respondent within 10 business days after being filed.
New section 129ZM (Response by respondent) allows the respondent to
file affidavits for the hearing of the respondent's application. This section
also requires the respondent to file the affidavits within 28 business days
after the application is filed.
New section 129ZN (Hearing of application) sets out the requirements for
hearing an application for a civil banning order. New subsection (1) allows
the court to hear and decide an application; or adjourn the application,
whether or not it makes it an interim banning order; or dismiss the
application.
Subsection (2) allows the court, if a respondent fails to appear before the
court that is to hear and decide the application for a civil banning order and
the court is satisfied that a copy of the application has been served on the
respondent, to: proceed to hear and decide the application in the absence of
the respondent; or adjourn the application, whether or not it makes an
interim civil banning order; or dismiss the application.
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Transport and Other Legislation Amendment Bill 2011
New section 129ZO (Making a civil banning order) provides for making a
civil banning order. Subsection (1) allows the court to make a civil banning
order if satisfied of the following:
· the respondent has, within the 12 months before the date of the
application for civil banning order, committed a relevant act of
violence or been served with 10 or more infringement notices for a
relevant offence, or relevant offences (and the infringement notices
have been dealt with under the State Penalties Enforcement Act 1999,
part 3; and
· unless the order is made, the respondent would pose an unacceptable
risk to: good order or management of the public transport network; or
the safety and welfare of persons on the public transport network.
Subsection (2) provides a non-exhaustive list of matters that the court must
have regard to in considering whether to make a civil banning order. The
matters listed are self-explanatory. Subsection (3) does not limit the
matters to which the court may have regard in considering whether or not
to make, or the terms of, an exclusion order.
Subsection (4) allows the court to impose a condition it considers necessary
on a civil banning order. Subsection (5) allows the court to make a civil
banning order whether or not the respondent has been charged with,
convicted of, acquitted of, or sentenced for, an offence arising out of the act
of violence mentioned in subsection (1)(a)(i). Subsection (6) states that for
the definition dealt with under subsection (7), a reference in the State
Penalties Enforcement Act 1999, part 3 to an alleged offender is taken to be
a reference to the respondent. Subsection (7) defines the term dealt with
and relevant act of violence.
New section 129ZP (Interim civil banning order) provides for making an
interim civil banning order. Subsection (1) states that the section applies if
an authorised person has made an application for a civil banning order
under section 173U. Subsection (2) allows the authorised person to apply
to the court for an interim civil banning order to be in force until the court
finally decides the application for the civil banning order or the application
otherwise ends. Subsection (3) sets out the information that must be
contained in an application for an interim civil banning order.
Subsection (4) states that the application for an interim banning order and
accompanying affidavit must be filed and thereafter served on the
respondent within five business days after the application is filed.
Subsection (5) states that the respondent may file affidavits to be relied on
by the respondent for the hearing of the application. Subsection (6)
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Transport and Other Legislation Amendment Bill 2011
requires the respondent to file the affidavits within 15 business days after
the day the application is filed.
Subsection (7) states that the court may make an interim civil banning
order if satisfied: the application for the interim civil banning order has
been served on the respondent and there are reasonable grounds for
believing there is a sufficient basis to make a civil banning order.
Subsection (8) allows the court to make an interim civil banning order
whether or not the respondent appears before the court or makes
submissions. Subsection (9) states that an interim civil banning order may
prohibit the respondent from doing, or attempting to do, anything that
person may be prohibited from doing by a civil banning order. Subsection
(10) states that an interim civil banning order takes effect from when it is
made if the respondent or legal or other representative of the respondent is
present at the hearing of the application; or otherwise, when the respondent
is served with the order.
New section 129ZQ (Varying or revoking civil banning order for changes
in circumstances) provides for varying or revoking a civil banning order
because of change of circumstances. Subsection (1) states that an
authorised person or a respondent may apply to a Magistrates Court to vary
or revoke a civil banning order. Subsection (2) prevents the respondent
from applying to vary or revoke a civil banning order until at least three
months after the order is made unless leave of the court is granted.
Subsection (3) requires that the application must be in the approved form
and be accompanied by an affidavit by the respondent outlining why the
variation mentioned in the application is necessary; and the information or
details of the information, the respondent intends to rely on for the
application. Subsection (4) requires the applicant to give a copy of the
application for varying or revoking a civil banning order to the authorised
person (if the applicant is a respondent) or to the respondent (if the
applicant is the authorised person) within 14 business days after the
application is filed. Subsection (5) provides that the authorised person and
respondent are each entitled to be heard at the hearing of the application.
Subsection (6) states that if the respondent makes the application,
subsection (3) does not prevent the respondent from producing further
evidence at the hearing of the application.
Subsection (7) allows the court to vary or revoke a civil banning order only
if the Court has regard to:
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Transport and Other Legislation Amendment Bill 2011
· the matters mentioned in section 129ZO as far as they are relevant to
the application and whether the respondent has, without reasonable
excuse under section 129ZZ, contravened the civil banning order; and
· is satisfied there has been a material change in circumstances of the
respondent that justifies the variation or revocation; and
· considers the justice of the case requires the variation or revocation.
New section 129ZR (Court may make civil banning order by consent)
provides for the Magistrates Court to make a civil banning order in a form
agreed to by an authorised person and the respondent. Such an order may
include only matters that may be dealt with under this part.
New section 129ZS (Orders must be explained) requires that a civil
banning order or an interim banning order must be explained to the
respondent in terms of the purpose and effect of the order; the
consequences of contravening the order; and (for a civil banning order) that
the order may be amended or revoked on the application of an authorised
person or the respondent.
New section 129ZT (Civil banning order to be given to interested persons)
requires that the proper officer of the Magistrates Court that makes a civil
banning order or an order varying or revoking a civil banning order must,
as soon as possible, provide a copy of the order in writing in the approved
form to the respondent, the commission of the police service, the chief
executive and the chief executive officer of the TransLink Transit
Authority.
Subsection (2) requires that the written order must include the name of the
respondent; the period for which the order applies; the prohibitions or
restrictions that the order imposes. Subsection (3) provides that failure to
comply with this section does not affect the validity of the order.
New section 129ZU (No costs to be awarded) provides that the Magistrates
Court must not award costs on proceedings under this division unless the
court dismisses the application as frivolous or vexatious or another abuse of
process.
New section 129ZV (No filing fee is payable) provides that no fees are
payable for making an application or filing another document under this
part.
New section 129ZW (Standard of proof) provides that a question of fact in
proceedings under this part, other than proceedings for an offence, is to be
decided on the balance of probabilities.
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Transport and Other Legislation Amendment Bill 2011
New section 129ZX (General application of rules of court) provides that
the Uniform Civil Procedure Rules 1999 apply to all applications made to
the court under this Part to the extent that those rules are consistent with
this part.
New section 129ZY (Interaction with criminal proceedings) sets out the
interaction of the civil banning order regime with criminal proceedings. It
allows for an application for a civil banning order or an interim banning
order to be made, and a court to dispose of the application, even if the
respondent has been charged with an offence arising out of the act of
violence on which the application is based. A reference to the making (or
refusal to make) the order or a revocation or variation; or the existence of
current proceedings in which a civil banning order is sought against the
respondent; or the fact that evidence of a particular nature or content was
given in the proceedings in which the order, revocation or variation was
made or refused or the current proceedings; is inadmissible in the trial of
the person for an offence arising out of the act of violence on which the
application for the order, revocation, or variation, or relevant to the current
proceedings, is based.
This applies if the respondent against whom a civil banning order has been
made; or a court refused to make a civil banning order; or proceedings are
current in which a civil banning order or an order varying or revoking a
civil banning order is sought, is charged with an offence arising out of an
act of violence on which the application is based. It also applies if the
respondent is charged with such an offence and the court has done either of
the following relating to a civil banning order naming the person as the
respondent: revoked, or refused to revoke, a civil banning order; varied, or
refused to vary, the civil banning order, including the conditions imposed
by the order.
To remove any doubt, the section expressly declares that, subject to this
section, an application, proceeding or order under this Part in relation to the
conduct of the respondent does not affect any proceeding for an offence
against the respondent arising out of the same conduct. Further, the
respondent may be punished for the offence arising out of the act of
violence on which the application is based despite any order made against
the respondent under this part.
New section 129ZZ (Contravention of civil banning order or interim civil
banning order) makes it an offence to contravene, without reasonable
excuse, a civil banning order or an interim civil banning order, which is
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Transport and Other Legislation Amendment Bill 2011
punishable by a maximum penalty of 40 penalty units or six months
imprisonment.
Subsection (2) provides a self explanatory non-exhaustive list of what the
court may consider is a reasonable excuse for a person to contravene a civil
banning order for a interim civil banning order.
Subsection (3) provides that if the magistrate court convicts a person of an
offence against subsection (1), the court may, in addition to or instead of
sentencing the person under subsection (1), vary the civil banning order.
Subsection (4) defines civil banning order.
New section 129ZZA (Appeals) provides that an authorised person or the
respondent in relation to whom a decision of the Magistrates Court under
this Part has been made may appeal against the decision to the District
Court.
New section 129ZZB (Time for appeal) makes it clear that an appeal must
be started within one month after the decision is made but that period may
be extended on application to the District Court.
New section 129ZZC (Starting appeal) provides that a person starts an
appeal by filing a notice of appeal with the registrar. The notice must be
signed by the person or the person's lawyer and state, briefly and precisely,
the grounds of the appeal. If the notice is not filed in the appeal period, the
person must also file with the registrar a notice of application for extension
of time for filing the notice.
New section 129ZZD (Registrar to give respondent copies of particular
documents) requires the registrar to give the respondent to an appeal copies
of the notice to appeal and notice of application for extension of time for
filing a notice of appeal.
New section 129ZZE (Stay of operation of decision) makes it plain that an
appeal does not stay the operation of the decision.
New section 129ZZF (District Court's powers on appeal) sets out the
powers of the District Court on appeal. An appeal is by way of rehearing.
The decision of the District Court upon an appeal is final and conclusive.
New section 129ZZG (No costs on appeal) provides that District Court
must not award costs on an appeal under this division unless the court
dismisses the application as frivolous or vexatious or another abuse of
process.
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Transport and Other Legislation Amendment Bill 2011
New section 129ZZH (Service of documents) provides for the service of
documents under this Part upon the respondent. It requires personal service
but allows for substituted service if it appears to the court that it is not
reasonably practicable to serve the document personally. If the document
requires the appearance of the respondent in court, the person serving the
document must explain the contents of the document to the respondent in
language likely to be understood by the respondent.
New section 129ZZI (Police commissioner must provide information
relevant to applications) enables the chief executive to ask the police
commissioner to give the chief executive the information required to make
(or consider making) an application for a civil banning order in relation to a
person, for example the information may include: the criminal history of
the person, police statements in relation to any act of violence committed
by the person and statements of witnesses or victims of any act of violence
committed by the person. The obligation of the commissioner to comply
with such a request applies only to information in the possession of the
commissioner or to which the commissioner has access.
Clause 89 amends section 148 (Inquiries about person's suitability to hold
accreditation or authorisation). Subsection (1) amends section 148(2) to
allow the chief executive to ask the police commissioner whether the
person has been subject to an order for an offence mentioned in schedule
1A, part 1.
Subsection (2) inserts a new subsection (6) that requires the police
commissioner to give the chief executive the following information under
subsection (2) about a person who is or has been subject to a relevant order
for an offence mentioned in schedule 1A, part 1:
· that the person is or has been subject to a relevant order from offence
mentioned in schedule 1A, part 1;
· the duration and details of the disqualification order if the person is or
has been subject to a relevant order that is a disqualification order
under the CCYPCG Act;
· a brief description of the conduct that gave rise to the order and the
duration and details of the order (including whether it is or was a
temporary offender prohibition order or final offender prohibition
order) if the person is or has been subject to an offender prohibition
order.
Clause 90 inserts new section 148BA (Obtaining information from chief
executive (corrective services)). New subsection (1) allows the chief
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Transport and Other Legislation Amendment Bill 2011
executive, by written notice, to ask the chief executive (corrective services)
whether a person applying for driver authorisation or a person who holds
driver authorisation is, or has been, subject to or becomes subject to the
obligations of a relevant order mentioned in section 28A(b). That is,
subject to the obligations or an order mentioned in section 170(b) of the
Commission for Children and Young People and Child Guardian Act 2000.
New subsection (2) requires the chief executive (corrective services) to give
the chief executive the information mentioned in subsection (1). New
subsection (3) states that the information given by the chief executive
(corrective services) must be in writing and state the person's name and that
the person is, or has been, subject to the order mentioned in section 28B(b).
New subsection (4) allows the chief executive (corrective services) and the
chief executive to enter into a written arrangement by which the written
notices are given under subsection (1). New subsection (5) allows the
arrangements for written notices to be given electronically. New subsection
(6) requires that if written notices under subsection (1) are given
electronically then the arrangements must provide for limitations on who
may access the information in the notices and on the purposes for which
that information may be used. New subsection (7) authorises the disclosure
of the information by the chief executive (corrective services) under this
Act despite any other act or law imposing an obligation to maintain
confidentiality about the information. New subsection (8) defines the chief
executive (corrective services) as the chief executive of the Department in
which the Corrective Services Act 2006 is administered.
Clause 91 inserts a new part 11 (Transitional provisions for Transport and
Other Legislation Amendment Act 2011) into chapter 13.
New section 189 (Application for amended provisions about driver
disqualifying offences in relation to driver authorisations) allows for a
postponement provision to apply in relation to an application for driver
authorisation made but not decided before the commencement of this
section. Also, the postponement provision applies to a person who holds
driver authorisation granted or renewed before the commencement.
Subsection (3) defines commencement as the commencement of this
section, postponement provisions as the provisions as in force on and from
the commencement of section 28B, or schedule 3 definition, category A
driver disqualifying offence or category B driver disqualifying offence or
category C driver disqualifying offence.
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Transport and Other Legislation Amendment Bill 2011
New section 190 (Application of ch 11, pt 4B immediately before the
commencement) states that chapter 11, part 4B applies in relation to a
relevant application in relation to a person made but not decided before the
commencement of this section. A relevant application under this section
means an application under Chapter 11, part 4B for the following: an
application order in relation to the person; an order varying or revoking an
exclusion order in relation to a person.
New section 191 (Application of ch11, pt 4C) provides that chapter 11, part
4C does not apply to an act of violence committed by a person before the
commencement of this section. Subsection (2) provides that chapter 11,
part 4C does not apply in relation to an infringement notice served on a
person before the commencement of this section.
Clause 92 amendment of schedule 1 (Disqualifying offences - provisions
of the Criminal Code)). Subsection (1) omits from schedule 1, part 1, item
19 chapter 42 (Frauds by trustees and officers of companies and
corporations-false accounting) of the Criminal Code. Chapter 42 was
repealed by the Criminal Code and Other Acts Amendment Act 2008 as its
offences are covered by other stealing and fraud offences of the Code and
subsequently schedule 1 of the Act. Subsection (2) inserts a new Part 3
(Provisions repealed by Criminal Code and Other Acts Amendment Act
2008) into schedule 1. The new Part lists item 1, chapter 42 (Frauds by
trustees and officers of companies and corporations-false accounting).
Clause 93 amends schedule 1A (Driver disqualifying offences) by omitting
`definition driver disqualifying offence' in the authorisation provision and
replacing it with category A driver disqualifying offence, category B driver
disqualifying offence and category C driver disqualifying offence.
Subsection (2) inserts in schedule 1A, part 1 a number of offences under
the Classification of Computer Games and Images Act 1995, Classification
of Films Act 1991 and the Classification of Publications Act 1991.
Subsection (3) omits a number of Criminal Code offences in schedule 1A.
These sections are reinserted in subsection (4). Subsection (4) inserts a
number of Criminal Code offences. Subsection (5) inserts a number of
offences under the Criminal Code (Cwth) and Customs Act 1901 (Cwth).
Inclusion of the Commission for Children and Young People and Child
Guardian Act 2000 disqualifying offences in schedule 1A will mean that
individuals convicted of any such offences that include a term of
imprisonment will be ineligible to hold driver authorisation. Such
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Transport and Other Legislation Amendment Bill 2011
individuals would not be eligible to hold a `blue card' under the
Commission for Children and Young People and Child Guardian Act 2000.
Subsection (6) omits the entry for the Drugs Misuse Act 1986 from
schedule 1A, Part 2. Subsection (7) omits item 17 from schedule 1A, part
3, division 1. Subsection (8) inserts chapter 42 (Frauds by trustees and
officers of companies and corporations - false accounting) as division 3
into schedule 1A, part 3 (Provisions of the Criminal Code repealed by the
Criminal Law Amendment Act 2008).
Clause 94 amends schedule 3 (Dictionary). Subsection (1) omits the
definitions for authorised person and relevant offence for chapter 11, part 4
and chapter 11, part 4B. Subsection (2) inserts new definitions for act of
violence, authorised person, CCYPCG Act, civil banning order, civil
banning variation order, copy, employment arrangement, interim civil
banning order, light rail manager, light rail operator, proper officer, public
transport network, relevant offence, relevant order and respondent.
Subsection (3) amends Schedule 3 definition of category A driver
disqualifying offence to include newly inserted offences in Schedule 1A for
which an imprisonment order was or is imposed, or for which the person is
subject to the obligations or an order mentioned in the Commission for
Children and Young People and Child Guardian Act 2000, section 170(b),
when a person was at least 17 years including new subsection (a) an
offence against a provision of an Act.
Subsection (4) amends Schedule 3 definition of category B driver
disqualifying offence to replace the Commission for Children and Young
People and Child Guardian Act 2000 with CCYPCG.
Subsection (5) amends Schedule 3 definition category B driver
disqualifying offence, by replacing paragraph (b) with an offence
mentioned in the definition category A driver disqualifying offence,
paragraph (a), (b) or (c) if the offence was committed by a person when the
person was under 17 years; and an imprisonment order was or is not
imposed; and the person is not subject to any obligations or orders
mentioned in the Commission for Children and Young People and Child
Guardian Act 2000, section 170(b) for which the person is not subject to a
relevant order.
Subsection (6) inserts the definition for public transport infrastructure.
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Transport and Other Legislation Amendment Bill 2011
Part 12 Amendment of Transport
Operations (Road Use
Management) Act 1995
Clause 95 states that this part amends the Transport Operations (Road Use
Management) Act 1995.
Clause 96 amends section 31 (Power to stop private vehicles) by omitting
the note in section 31(1).
Clause 97 amends section 49 (Power to require documents to be produced)
by omitting the note in section 49(2D).
Clause 98 amends section 77 (Restricted release of person's prescribed
authority and traffic history information) to provide that the section deals
only with the release of information in writing.
Clause 99 inserts a new section 77AA (Restricted oral release of particular
information). Section 77AA(1) authorises the chief executive to orally
release certain information to a person. The information that may be
released is information kept under the Act about the person's prescribed
authority or traffic history. The terms prescribed authority and traffic
history are defined in the Schedule 4 Dictionary to the Act. Section
77AA(2) provides that the chief executive may only release the information
if satisfied that the person is the person to whom the information relates.
Clause 100 amends section 79 (Vehicle offences involving liquor or other
drugs) to introduce a new middle alcohol limit offence and to amend
provisions requiring a Magistrates Court to suspend a person's licence in
certain situations.
Clause 100(2) inserts a new subsection 79(1F) which provides that it is an
offence to drive, attempt to put into motion or be in charge of a motor
vehicle, tram, train or vessel while the person is over the middle alcohol
limit (a blood/breath alcohol concentration of 0.10 or above) but not over
the high alcohol limit (a blood/breath alcohol concentration of 0.15 or
above). The maximum penalty for this offence is 20 penalty units or up to
six months imprisonment. A person may not be charged or convicted under
this offence unless the offence was committed after the amendments
commence (see section 20C of the Acts Interpretation Act 1954).
Clause 100(3) amends section 79(2) to provide that the offence in that
section applies when a person is over the general alcohol limit (a
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Transport and Other Legislation Amendment Bill 2011
blood/breath alcohol concentration of 0.05 or above) but not over the new
middle alcohol limit. Previously, the offence in this section applied when a
person was over the general alcohol limit but not over the high alcohol
limit.
Clauses 100(1), (4), (5), (6), (7), (8), (9) and (10) insert into relevant
subsections of section 79 consequential references to the new offence in
section 79(1F). The amendments will include reference to the new offence
in provisions dealing with:
· liability for offences under section 79 where the person has been
convicted of an earlier offence (sections 79(1D), (1E), (2F), (2G),
(2H), (2I));
· convictions arising from the hearing of a complaint of an offence
against section 79(1) (sections 79(4) and (4A));
· defendants manifesting an intention to refrain from driving a motor
vehicle (section 79(6)); and
· the suspension of a driver licence where a defendant fails to appear in
court (section 79(9)).
In relation to liability for repeat drink driving offences, the Act currently
treats all drink driving offences, other than the offence under section 79(1),
in the same manner. The amendments retain that pattern for repeat offences
involving a middle alcohol limit offence. In particular, clause 100 inserts
reference to the new middle alcohol limit offence under section 79(1F)
wherever there is reference to drink driving offences other than under
section 79(1).
Clause 100(11) provides that the suspension of a Queensland driver licence
imposed under section 79(9) will end if the court orders that the suspension
be revoked in the interests of justice. If the court does not make such an
order, the suspension will end when the charge is heard and decided or
otherwise disposed of.
Clause 100(12) amends section 79(9A) to clarify the interaction between
section 79(9) and section 20(3AA) of the Bail Act 1980. Specifically, the
amendment clarifies that a driver licence suspension under section 79(9)
should not be imposed if the person is represented by their lawyer in
accordance with the provisions of the Bail Act 1980.
Clause 100(13) amends section 79(10) by providing that the court need not
impose a licence suspension under subsection (9) if it is satisfied the order
should not be made in the interests of justice. This discretion is in addition
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Transport and Other Legislation Amendment Bill 2011
to the existing discretion to not impose a suspension order where the person
was physically incapable of appearing before the court due to a medical or
other circumstance.
Clause 100(14) inserts a new section 79(10AA). This section confirms that
a Magistrates Court has and may exercise a discretion to revoke an order
previously made under section 79(9) if it is in the interests of justice.
Clause 101 amends section 79A (When a person is over the limit) to define
the middle alcohol limit for the Act. A person is over the middle alcohol
limit if the concentration of alcohol in the person's blood is, or is more
than, 100mg of alcohol in 100mL of blood or the concentration of alcohol
in the person's breath is, or is more than 0.100g of alcohol in 210L of
breath.
Clause 102 amends section 79B (Immediate suspension or disqualification)
to provide that the section applies if a person is charged with the middle
alcohol limit offence in section 79(1F) in relation to a motor vehicle.
This will ensure that a person charged with the middle alcohol limit offence
will have their Queensland driver licence or authority to drive under a
non-Queensland driver licence immediately suspended. If the person does
not hold a driver licence, the person will be disqualified from obtaining or
holding a Queensland driver licence.
Clause 103 amends section 79E (Court may allow particular person whose
licence is suspended under section 79B to drive) by providing that the
section applies to a person whose Queensland driver licence is suspended
under section 79B because the person was charged with the middle alcohol
limit offence in section 79(1F). This will enable the person to apply to the
court for authority to continue driving on Queensland roads in stated
circumstances if the person obtains a replacement licence under section
79F. The person must also be eligible and apply under a regulation as
provided for in section 79E(1)(b).
Clause 104 amends section 79G (When person is disqualified while section
79E order applies) by inserting a reference to new section 79B(1)(ab). This
will ensure that the operation of section 79G is extended to a person who
obtains a section 79E order after being charged with the new middle
alcohol limit offence.
Clause 105 amends section 80 (Breath and saliva tests, and analysis and
laboratory tests). Clauses 105(2) and 105(6) amend the time period
specified in sections 80(2) and 80(4) during which a police officer can
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Transport and Other Legislation Amendment Bill 2011
require a specimen of breath for a breath test. That requirement must now
be made within three hours of the event which authorises the officer to
make the requirement.
Clause 105(7) similarly amends the time period during which a police
officer may require a person who is at a hospital for treatment to provide a
specimen of breath for a breath test, or a specimen of blood for a laboratory
test, from two hours to three hours.
Clauses 105(1), (3), (4), (5), (11), (12), (13) and (20) make amendments
that are consequential on the amendments in clauses 105(2) and 105(6)
discussed above. The amendments to sections 80(15G) and 80(16F) that
are contained in clause 105(2) are also consequential amendments.
Clauses 105(8), (9) and (10) amend section 80(8J) to remove the
requirement that the police officer operating a breath analysing instrument
must not be the police officer who arrested or detained the person.
Clauses 105(14), (15), (16), (17), (18) and (19) make consequential
amendments to the amendments in clauses 105(8), (9) and (10).
Clause 106 amends section 81 (Notices to offenders for certain first
offences) to make a consequential amendment to the amendments in clause
100 which introduce the middle alcohol limit offence. The general alcohol
limit offence in section 79(2) has been amended to only apply to a person
who is not over the middle alcohol limit. As a result, the provisions of
section 81(1)(b) are no longer required as the only people who can be
charged with the offences set out in section 81(1)(a) are those who are
under the middle alcohol limit.
Clause 107(3) amends section 86 (Disqualification of drivers of motor
vehicles for certain offences) to provide that a person convicted of a middle
alcohol limit offence under section 79(1F) with no relevant convictions in
the previous five years must be disqualified from holding or obtaining a
Queensland driver licence for a period of not less than three months and not
more than 12 months.
Clause 107 also inserts reference to the new section 79(1F) into relevant
subsections of section 86 that deal with the disqualification of drivers for
drink driving and related offences.
In relation to disqualifications imposed for repeat drink driving offences,
the Act currently treats all drink driving offences, other than the offence
under section 79(1), in the same manner. The amendments retain that
pattern for repeat offences involving a middle alcohol limit offence. In
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Transport and Other Legislation Amendment Bill 2011
particular, clause 107 inserts a reference to the new middle alcohol limit
offence under section 79(1F) wherever there is reference to drink driving
offences other than the offence under section 79(1).
Clause 108 amends section 87 (Issue of restricted licence to disqualified
person). A person convicted of an offence against section 79(1F) may be
granted a court order directing that the person be issued with a restricted
licence if the person meets all requirements under section 87.
Clause 108(2) provides that if a person disqualified as a result of a
conviction for an offence against section 79(1F) applies for a restricted
licence, the immediate suspension of their licence under section 79B is not
included in the reference to a suspension in section 87(5)(b). The
immediate suspension will not, therefore, preclude them from obtaining a
restricted licence.
Similarly, clause 108(3) provides that if the person held an open or
provisional licence immediately prior to the disqualification, the person is
considered to be holder of an open or provisional for the purpose of section
87(5)(f).
Clause 108(1) provides, however, that an application for a restricted licence
from a person convicted under section 79(1F) must not be granted if the
person is a person to whom the no alcohol limit applied.
Clause 109 amends section 90A (Definitions for ss 90B-90D) to provide
that for sections 90B to 90D, a designated offence and a drink driving
offence includes an offence against section 79(1F). Sections 90A to 90D
provide that periods of multiple driver disqualifications are to take effect
cumulatively and not concurrently for designated offences and drink
driving offences.
Clause 110 amends section 91I (Definitions for pt 3B) to make a
consequential amendment to the definition of drink driving offence. The
amendment replaces a reference in that definition to section 79(2) with a
reference to both section 79(2) and (1F) as a result of the introduction of
the new middle alcohol limit offence.
Clause 111 amends section 91Q (Deciding application for interlock
exemption) to include that the chief executive may grant an interlock
exemption if:
· the nearest interlock installer is reasonably inaccessible from the
person's principal place of residence; or
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Transport and Other Legislation Amendment Bill 2011
· the person's principal place of residence is outside both a prescribed
radius from the nearest interlock installer and any area where a mobile
interlock installation service is provided by a prescribed interlock
installer.
Clause 112 omits section 170A (Expiry and amendment of certain
provisions). Section 170A was designed to expire provisions of the Act
relating to the enforcement of bus and transit lanes by authorised officers.
Those powers are to be retained permanently and, as a result, section 170A
is no longer required.
Clause 113 inserts a transitional provision to confirm that, despite the
amendment of the Transport Operations (Road Use Management--Driver
Licensing) Regulation 2010 in Part 13 of the Bill, the Governor in
Council's power to further amend or repeal that regulation is not affected.
Clause 114 amends schedule 4 (Dictionary) to insert a cross-reference to
the definition of middle alcohol limit in section 79A.
Part 13 Amendment of Transport
Operations (Road Use
Management - Driver Licensing)
Regulation 2010
Clause 115 states that this part amends the Transport Operations (Road
Use Management--Driver Licensing) Regulation 2010.
Clause 116 amends the definition of suspended licence that appears in
section 90 (Definitions for pt 13) to include a reference to new section
79B(1)(ab) of the Transport Operations (Road Use Management) Act 1995
(inserted by clause 102 above). Under section 79B(1)(ab) a person who is
charged with the middle alcohol limit offence will have their licence
immediately suspended. This amendment is necessary to ensure the person
is entitled to bring an application for a section 79E order allowing them to
continue to drive in circumstances stated in the order.
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Transport and Other Legislation Amendment Bill 2011
Part 14 Amendment of Transport
Planning and Coordination Act
1994
Clause 117 states that this part amends the Transport Planning and
Coordination Act 1994.
Clause 118 amends section 27 (Power of chief executive to lease, sell or
otherwise dispose of land) by inserting `for a transport purpose' in the
heading after `land'.
Clause 119 will omit the current section 27A (Power of chief executive to
dispose of land subject to easement) by inserting a new section 27A (Power
of chief executive to dispose of land) in its place.
The department resumes properties as a constructing authority under the
Acquisition of Land Act 1967. In some cases, the properties or parts of
properties are required for less than seven years from the date of the
acquisition. For example, a property may be required for construction of a
tunnel and the property provides construction access. Upon completion of
construction, the land is no longer required for the purpose for which it was
acquired. Section 41(1) of the Acquisition of Lands Act 1967 requires the
chief executive to offer the land back to the former owner.
Currently, under the Acquisition of Land Act 1967, the department has to
engage the valuer-general to obtain a valuation and then offer the property
for sale to the former owner. In most cases, the former owner declines the
buy-back offer, having used the compensation payment to establish their
lives elsewhere. In many cases, the residual land is of such a size, shape or
location that is no longer desirable for the former owner. The current
process is time and resource consuming and in the vast majority of cases,
does not result in a buy-back by the former owner.
New section 27A in the Transport Planning and Coordination Act 1994
will replace the offer-back process under the Acquisition of Land Act 1967.
New section 27A will improve and simplify the offering back process by
asking the former owner if they are interested in a buy-back before any
valuation is obtained. Only if the former owner expresses interest in the
buy-back does the chief executive formulate the price.
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Transport and Other Legislation Amendment Bill 2011
The chief executive will determine the price based on valuations from a
registered valuer, the current government land policies, and the existence of
any easement over the land.
This is a far more efficient process for the Department of Transport and
Main Roads, the Department of Environment and Resource Management
and the former owner. The department is then able to deal with the land,
for example, by aggregating smaller parcels and disposing of the land.
The effect is to enable the more efficient disposal of resumed land that is no
longer required within seven years of resumption.
In some cases, an easement is reasonably required to protect the structural
and operational integrity of infrastructure. For example, for emergency
access or subterranean support of a tunnel. The support required by the
easement may include some limitation on excavation of or loading on the
land to prevent loss of support from asymmetric loading to the tunnel.
Where such an easement is required, the chief executive must register the
easement over the land before offering the land to the former owner. This
process for registration of easements is generally provided under the Land
Titles Act 1994.
Where land is being offered back that is subject to an easement, the chief
executive must notify the former owner that the land is subject to an
easement and the terms of the easement. Ultimately, if the former owner
wishes to buy back the land, the chief executive must take the easement
into consideration in determining the price.
Clause 119 provides for new 27A(1) and (5), which sets the parameters for
the application of the section, namely, when the chief executive intends to
offer back resumed land within seven years of resumption.
New section 27A(2) provides that section 27A applies despite the
Acquisition of Land Act 1967. Therefore, in respect of the subject matter of
section 27A, section 27A prevails.
New section 27A(3) and (4) require the chief executive to lodge an
easement over land prior to it being offered back where the chief executive
reasonably believes it is necessary to ensure the structural and operational
integrity of infrastructure.
New section 27A(6), and (9) to (12) provide the process for offering land
back and includes the process to be used where the land being offered back
is subject to an easement registered under this section.
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Transport and Other Legislation Amendment Bill 2011
New section 27A(7) and (8) allow for the disposal of land if the former
owner e has not given notice within 28 days that they are interested in
buying the land.
New section 27A(13) replicates section 41(3) of the Acquisition of Land
Act 1967 and is equivalent to the principle of bona fide purchaser without
notice.
New section 27A(14) imports the definition of former owner from the
Acquisition of Land Act 1967 and defines registered valuer.
Part 15 Amendment of Transport (Rail
Safety) Act 2010
Clause 120 states that this part amends the Transport (Rail Safety) Act
2010.
Clause 121 amends section 42 (Exemption may be granted) by replacing
`private isolated railway' with the term `low risk railway', reflecting the
intent of the legislation.
Clause 122 amends section 43 (Application for exemption) by replacing
`private isolated railway' with the term `low risk railway', reflecting the
intent of the legislation.
Clause 123 amends section 44 (What applicant must demonstrate and
conditions that may be imposed) by removing the requirement for the chief
executive to take into consideration whether the railway is to operate
during daylight hours only. This is not regarded to be a primary indicator
when assessing a "low risk railway".
Clause 124 inserts new Chapter 12A (Protection for whistleblowers).
Section 267A (Application of part 12A) provides for non-public officers to
report under this part and public officers to report under the Public Interest
Disclosure Act 2010. This outlines the way in which whistleblower
protection will apply to persons reporting breaches of the Act or other rail
safety issues to the Rail Safety Regulator.
Section 267B (General limitation) states the whistleblower is not civilly or
criminally liable for disclosing information to an official about a person's
conduct, whether committed before or after the commencement of this
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Transport and Other Legislation Amendment Bill 2011
section, that the disclosing person honestly believes on reasonable grounds
contravenes this Act. It also provides for absolute privilege as a defence
and states the disclosing person does not contravene the Act, oath, rule of
law or practice by making the disclosure, or breach the agreement by
making the disclosure. An agreement includes a contract or deed.
Section 267C (Liability for conduct unaffected) states the liability of the
whistleblower for his or her own conduct is not affected only because the
whistleblower discloses the conduct to an official. However, a court may
have regard to the disclosure if the whistleblower is prosecuted for an
offence involving the conduct and the whistleblower's conduct was in
compliance with an express instruction of the rail transport operator or
someone authorised by the rail transport operator to give the instruction.
Clause 125 amends schedule 3 (Dictionary) by inserting a definition for
disclosing person, low risk railway and rail or road public crossing and
removes the definition of private isolated railway.
© State of Queensland 2011
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