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1
Transport Legislation Amendment
TRANSPORT LEGISLATION
AMENDMENT BILL 1996
EXPLANATORY NOTES*
The Transport Legislation Amendment Bill 1996 has been drafted
consistent with current legislative drafting practice.
GENERAL OUTLINE
Objectives of Legislation
On 29 July 1996 Cabinet endorsed the introduction of speed cameras in
Queensland from December 1996. The Bill implements the legislative
changes necessary for the efficient introduction of speed cameras and
rectifies existing deficiencies in camera detected offence legislation.
The legislation:
· facilitates the efficient processing of camera detected offences by
providing for use of infringement notices and enabling unpaid
notices to be processed by the Self-Enforcing Ticketable Offence
Notice System (SETONS) Court;
· addresses potential deficiencies in the relevant evidentiary and
deeming provisions contained in the Traffic Act 1494 relating to
red light cameras and extends these provisions for speed cameras;
· expands the range of camera detected offences to cover offences
under any transport portfolio act;
· provides for the application of an increased penalty where a
vehicle is owned by a corporation and the owner cannot or will
not nominate a driver (thus maintaining the integrity of the speed
management strategy and providing more equitable penalties);
* These Explanatory Notes relate to the Bill as introduced into the Legislative
Assembly. This Bill was amended in Committee--see Endnotes.
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Transport Legislation Amendment
and
· provides within the vehicle registration scheme for the
identification of a person or corporation who is responsible for the
operation of a vehicle.
Reasons for Legislation
To allow for the successful introduction of speed cameras it is necessary
to amend Queensland's existing owner onus and camera detected offence
provisions under the Traffic Act 1949 as well as other miscellaneous
changes to the Transport Infrastructure (Roads) Act 1991, Transport
Operations (Road Use Management) Act 1995 and the Justices Act 1886.
The effectiveness of Queensland's existing legislation in relation to the
enforcement of red light camera detected offences was carefully examined
when preparing these amendments. So far as possible, when amending
legislation to allow for the introduction of speed cameras, weaknesses
which currently permit persons to evade the effect of the law have been
addressed.
The Transport Legislation Amendment Bill provides the legislative
framework to efficiently address issues such as driver identification and
owner onus whilst ensuring social justice.
Estimated Cost for Government Implementation
The introduction of speed cameras in Queensland is expected to generate
$30 million in the first year of full operation. Cabinet has approved the
recovery of implementation costs from speed camera revenue as follows:
· $5 million by the Queensland Police Service for the purchase of
15 speed cameras, processing systems and implementation costs;
· $1.5 million by Queensland Transport for increased public
education;
· $920,000 by Main Roads for a review of speed limits on state
controlled roads;
· $200,000 by Queensland Transport to reduce illegible number
plates;
· $2.3 million per annum for operation of the speed camera system.
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Transport Legislation Amendment
Fundamental Legislative Principles
Because of the nature of camera detected offences, it is necessary for the
legislation to breach certain FLPs if effective enforcement is to be achieved.
A precedent has been established with existing camera detected offence
legislation.
The Bill is contrary to the following FLPs:
Reversal of Onus of Proof: Because offences detected by speed
cameras are remotely detected offences, it is not possible to positively
identify the driver at the time of the offence (as is the case when a driver is
intercepted by a Police Officer).
This necessitates certain presumptions regarding the identity of the driver
of the vehicle (i.e. the driver is the owner of the vehicle). Onus is then on
the owner to prove that he or she was not the driver of the vehicle at the time
of the offence. Provision is made for an owner to nominate a person other
than themselves as the driver of their vehicle. Defences are also provided if
the owner was not the driver but cannot ascertain who was.
The Bill provides a balanced approach to protecting the rights of
individuals whilst ensuring guilty persons cannot evade the law.
Vicarious Liability: A person may avoid liability for a camera detected
offence by identifying the driver or using the defence provisions made
available but if the person can do neither the person will be held liable.
Where a corporation is held liable a higher penalty will be applied in lieu of
demerit points which would otherwise be issued to a natural person. This
will negate the present dis-incentive for a corporate owner to nominate the
driver.
The introduction of a corporate penalty for infringement notices issued
for camera detected speeding offences is simply a further application of the
current law. This penalty will only be imposed where a driver has not been
nominated and will in effect be in lieu of demerit points.
The application of a corporate penalty will close a loophole and provide
equity in the application of penalties.
Making an appropriate person or body liable for the operation of their
vehicle is critical to the success of camera detected offence schemes.
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Transport Legislation Amendment
Consultation
The Transport Legislation Amendment Bill 1996 was jointly prepared by
the portfolios of Transport and Police who are responsible for the
administration and enforcement of the significantly affected legislation. The
Department of Justice and the Attorney-General were consulted regarding
the minor amendments to the Justices Act.
The policy initiatives espoused in the legislation were approved by
Cabinet on 29 July 1996 at which time extensive consultation was
undertaken.
The issues raised by major stakeholders have been reconciled and there
are no unresolved substantive issues.
PART 1--PRELIMINARY
Section1 sets out the short title of the Bill.
Section 2 provides for commencement of the provisions of the Bill.
Amendments to the Transport Operations (Road Use Management) Act
1995 will not commence until the repeal of the Transport Infrastructure
(Roads) Act 1991 (as required by S.93(1) of the Transport Operations
(Road Use Management) Act 1995).
The remaining provisions of the Bill will commence on a day to be fixed
by proclamation.
PART 2--AMENDMENT OF TRAFFIC ACT 1949
Section 3 identifies the act to be amended.
Section 4 amends and inserts various definitions applicable to Division 2
of Part 6B of the Traffic Act 1949 which deals with camera detected
offences.
It amends the existing definitions of "camera detected offence" and
"prescribed offence" to allow for:
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Transport Legislation Amendment
· processing through SETONS for infringement notices issued for
camera detected offences
· expanding the range of offences currently able to be prescribed by
regulation as camera detected offences to include an offence under
any transport act (currently restricted to the Traffic Act 1949)
As is currently the case, offences that are camera detected offences will
be prescribed by regulation and will undergo the associated scrutiny.
The following additional definitions have been included:
"corresponding law" and "transport act"--have been added for ease of
drafting and interpretation.
"owner" and "responsible operator"--As camera detected offences are
remotely detected offences, certain presumptions need to be made
regarding the identity of the driver. These definitions have been added
to establish a clear chain of responsibility when determining who
should be responsible for a camera detected offence.
In the first instance, the following person/company will be held liable for
a camera detected offence:
(a) the nominated responsible operator; or
(b) in the absence of a nominated responsible operator, the registered
owner; or
(c) if the vehicle is bailed, the bailee; or
(d) if the vehicle is a hire vehicle, the person who contracted to use
the vehicle.
Section 5 replaces the exiting Section 44Q of the Traffic Act 1949.
Subsection 1 minor changes are made to modernise the wording. Apart
from the changes caused by the definitions of owner and responsible
operator, (refer section 3 above) this subsection remains essentially
unchanged. It provides that the responsible operator or owner may be
taken to have committed a camera detected offence.
Subsection 2 prevents more than one person being punished for the same
offence.
Subsection 3 provides the defences a person may use to avoid liability for
a camera detected offence. A person must nominate the driver or show that
she or he exercised reasonable diligence to try and identify the driver.
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Transport Legislation Amendment
Subsection 4 requires that an approved form must be used to notify the
nomination of another driver or the inability to identify the driver.
Subsection 5 requires that where a person intends to nominate another
person as the driver the person must make the appropriate notification
within four months. If after four months a person claims a form was
lodged within the period but the notification was not received, the person
may be asked to prove that the notification was sent. A person's testimony,
if credible, may be sufficient proof that a form was sent.
Subsection 6 clarifies what a person will be required to prove in order to
demonstrate they exercised reasonable diligence when trying to identify the
driver of their vehicle.
Subsection 7 provides that where a person can prove that at the time of
the camera detected offence the vehicle in question was either stolen or
being used illegally or had been sold or disposed of, the requirement to
prove reasonable diligence will not apply.
Subsection 8 makes it an offence to falsely nominate a person as the
driver of the vehicle.
Subsection 9 provides that notification can be made by an office holder
on behalf of a body corporate.
Section 6 replaces the existing section 44R of the Traffic Act relating to
infringement notices for camera detected offences with provisions outlining
the consequences of a person penalised for an offence having it reviewed
and rescinded on the grounds that the person was not he driver. The new
section will allow proceedings to be started against a person nominated as
the driver within three months of this rescission despite provisions which
would otherwise impose a limit of one year from the time the offence
occurred. (Infringement notices will now be processed under the Justices
Act 1886.)
Section 7 replaces the existing provision relating to notification
accompanying a complaint and summons with a requirement that any
infringement notice or notice alleging a camera detected offence must be
accompanied with information about the person's rights and details related
to the offence.
Section 8 repeals the existing provision about payments under the
abandoned infringement notice scheme for camera detected offences as it is
now redundant.
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Transport Legislation Amendment
Section 9 relates to periods of notice to be given before examination or
challenge of photographic evidence and response times. This section
extends the current periods moderately (to the benefit of both the challenger
and the prosecution) and provides for emerging technology such as digital
imaging by replacing the term photograph with image.
Section 10 replaces an existing provision now redundant because of the
abandonment of the present infringement notice scheme for camera detected
offences with a provision requiring a person who wishes to claim that a
traffic control instrument (such as traffic lights or a speed sign) was
defective or not visible to give seven days notice to the prosecution.
(Infringement notices will now be processed under the Justices Act 1886.)
Section 11 provides for emerging technology such as digital imaging by
replacing the term photograph with image. It also provides that a regulation
may prescribe what the information contained in the data block on an image
means (such as speed measured, time of the offence). This section also
provides that the data block on an image may be admitted into evidence.
This section also provides that a certificate issued by the registration
authority identifying a registered owner or nominated responsible operator
should be accepted by a court as evidence of what it says.
Section 12 provides that where the Justices Act 1886 provides things
which are the same as or inconsistent with the intent of this Bill the
provisions of this Bill will apply. It specifies particular provisions which
do not apply for the purposes of clarity.
Section 13 prescribes that a certificate about the accuracy of a speed
measuring or breath analysis instrument is to be taken as evidence that the
instrument was accurate for one year after being tested in accordance with
approved guidelines. It prescribes similar things about a certificate stating
the device was used in accordance with certain guidelines. These provisions
are consistent with similar existing provisions. A copy of a plan of
installation of a photographic detection device certified by Queensland
Transport or Queensland Police Service will also be accepted as evidence of
the things shown in it.
PART 3--AMENDMENT OF TRANSPORT
INFRASTRUCTURE (ROADS) ACT 1991
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Transport Legislation Amendment
Section 14 identifies the act to be amended.
Section 15 provides that the chief executive or commissioner may require
the nomination of a responsible operator for a vehicle where the owner(s)
have previously been involved in a camera detected offence and have failed
to identify the driver. If the owner does not nominate a responsible
operator, one of the registered owners may be nominated by the registration
authority. The responsible operator is to be an individual person or a
corporation or other legal entity. If the responsible operator is a natural
person, that person must be 16 years of age or more and hold a licence to
drive a vehicle.
Section 16 authorises regulations to be made for the nomination of a
responsible operator.
PART 4--AMENDMENT OF TRANSPORT
OPERATIONS (ROAD USE MANAGEMENT) ACT
1995
Section 17 identifies the act to be amended.
Section 18 replicates sections 13 and 14 in the Transport Operations
(Road Use Management) Act 1995. Duplicated provisions are required as
this act will authorise regulations about the registration of vehicles after the
expiry of the Transport Infrastructure (Roads) Act 1991 on or before 1
July 1997.
PART 5--AMENDMENT OF JUSTICES ACT 1886
Section 19 identifies the act to be amended.
Section 20 authorises a regulation to provide for a penalty for a
corporation of five times the monetary penalty applicable to a natural person
for the same offence. A similar provision currently exists under the
Penalties and Sentencing Act for court imposed penalties. This Section has
been included to extend this concept to include infringement notice penalties
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Transport Legislation Amendment
for camera detected offences and has been included in the Justices Act 1886
for clarity of legislation.
A corporate penalty will only be applied to those companies that fail to
nominate the driver of a vehicle and is in effect in lieu of the additional
demerit point penalty incurred by individuals.
Amendments agreed to in Committee
Clause 8, lines 7 to 9
At page 9, lines 7 to 9--
omit, insert--
`Replacement of s 44T (Payment of penalty)
8. Section 44T--
omit, insert--
`Use of penalties collected for camera detected offences
`44T.(1) All money collected for penalties imposed for camera detected
offences in excess of the administrative costs of collection must be used for
the following purposes--
(a) road safety education and awareness programs;
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Transport Legislation Amendment
(b) road accident injury rehabilitation programs;
(c) road funding to improve the safety of the sections of State-
controlled roads where accidents most frequently happen.
(2) In this section "State-controlled road" means a road or route or part
of a road or route declared to be a State-controlled road under the Transport
Infrastructure Act 1994.'.'.
© State of Queensland 1996