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1
Transport Legislation Amendment Bill 2007
Transport Legislation Amendment Bill
2007
Explanatory Notes for Amendments to be
moved during consideration in detail by the
Honourable John Mickel MP, Minister for
Transport, Trade, Employment and Industrial
Relations
Title of the Bill
Transport Legislation Amendment Bill 2007
Objectives of the Amendments
The amendments will insert certain evidentiary aid provisions into the
Transport Operations (Road Use Management) Act 1995 (TORUM Act) to
support the adoption in Queensland of the National Transport Commission
(Model Legislation - Intelligent Access Program) Regulations 2006.
The Intelligent Access Program (IAP) will enable concessions to be given
to operators of heavy vehicles, from statutory requirements otherwise
applying, in return for the heavy vehicles being fitted with technology that
can reliably monitor the use of a heavy vehicle. These concessions could
provide a heavy vehicle with greater access to sections of the road network
or allow it to carry more tonnes per kilometre.
The amendments also further extend the period in which proceedings can
be commenced against a driver who fails to comply with the requirement to
stop and render assistance following a road incident.
The amendments finally make some minor editorial corrections to the
Transport Legislation Amendment Bill 2007 ("the Bill").
Achievement of the Objectives
The amendments achieve the objectives by:
� outlining matters that can be the subject of evidentiary certificates
signed by the chief executive or the Transport Certification Authority;
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Transport Legislation Amendment Bill 2007
� providing for evidentiary aids supporting certain aspects of the IAP,
including the intelligent access map, the approved intelligent transport
system and the reports made by the system;
� further extending the period in which proceedings can be commenced
against a driver who fails to comply with the requirement to stop and
render assistance following a road incident under s.92(1) of the
TORUM Act; and
� providing for some minor editorial amendments to the Bill.
Alternative Ways of Achieving Policy Objectives
The policy objectives of these amendments can only be achieved by
legislative enactment.
Estimated Cost for Government Implementation
Any costs directly associated with the amendments will be minor and
absorbed within existing budgetary allocations.
Consistency with Fundamental Legislative Principles
Legislation should not reverse the onus of proof in criminal proceedings
without adequate justification. The use of evidentiary certificates and other
evidentiary aids may be considered to be a breach of the fundamental
legislative principle of reversing the onus of proof (amended s.60 and new
ss.61D - 61G, Amendments 3 to 6).
However, the evidentiary aids are prima facie evidence only, and evidence
can be led by the defendant to refute the assumptions made by the
provisions. The certificates covering the technical processes are
appropriate as they eliminate the need to prove these issues in every court
case, with the exception of cases where the defendant chooses to challenge
these issues.
Finally, the need to improve the safety outcomes in relation to the operation
of heavy vehicles (in terms of monitoring of over-mass and specialised
vehicles on Queensland roads) is considered to outweigh any potential
infringement of individual rights.
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Transport Legislation Amendment Bill 2007
Consultation
The Department of the Premier and Cabinet, Queensland Treasury, the
Department of Justice and Attorney-General, the Queensland Police
Service, and the Department of Employment and Industrial Relations,
Division of Workplace Heath & Safety have been consulted on the
amendments connected with the IAP. The Department of the Premier and
Cabinet and the Department of Justice and Attorney-General have been
consulted on the amendments connected with further extension of the
period for commencing proceedings for an offence under s.92(1) of the
TORUM Act. All parties are supportive of the provisions contained in the
amendments.
Notes On Provisions
Amendment 1 amends clause 44 of the Bill which inserts a new section
35C (Running or stopping heavy vehicle engine) into the TORUM Act.
The amendment clarifies that new section 35C only applies for the
purposes of enabling an authorised officer to effectively exercise a power
under the TORUM Act.
Amendment 2 amends clause 51 of the Bill which inserts a new section
48A (Further power to require personal details for exercising power in
relation to heavy vehicle) into the TORUM Act. The amendment corrects a
minor drafting inconsistency in the new section 48A(8) by clarifying the
application of the definition of "heavy vehicle offence".
Amendment 3 amends clause 66 of the Bill which amends section 60
(Evidentiary aids) of the TORUM Act. The amendment provides for
additional matters that can be the subject of an evidentiary certificate
signed by the chief executive. The amendment inserts new sections
60(2)(la) and 60(2)(lb) which deal with either the receipt or non receipt, on
or by a specified day, of specified reports or information required to be
given to the chief executive under a transport Act. For example,
obligations of parties under the IAP to report knowledge of tampering with
an intellegent transport system.
Amendment 4 amends clause 66 of the Bill which amends section 60
(Evidentiary aids) of the TORUM Act, providing for an additional matter
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Transport Legislation Amendment Bill 2007
that can be the subject of an evidentiary certificate signed by the chief
executive. The new section 60(2)(u) deals with a specified mathematical or
statistical procedure being carried out by an approved intelligent transport
system and the results of the procedure being carried out. These provisions
would cover, for example, the mathematical or statistical procedure needed
to be undertaken by an approved intelligent transport system in order to
convert raw data (for example, GPS information as to a heavy vehicle's
position) into a reportable or readable form. The definition of "intelligent
transport system" is provided by clause 77(2) of the Bill. The definition of
"approved intelligent transport system" is provided in Amendment 7.
Amendment 5 amends clause 66 of the Bill which amends section 60
(Evidentiary aids) of the TORUM Act. The amendment inserts a new
section 60(3A) into the TORUM Act, which supports section 60(2)(u)
inserted by Amendment 4. The new section 60(3A) provides that the
procedure specified in a certificate under section 60(2)(u) (described
above) is presumed, unless the contrary is proved, to be valid and reliable
for the purpose for which it was used and to have been correctly carried
out.
Amendment 6 inserts clause 67A into the Bill which inserts new sections
61D to 61G into the TORUM Act. The new section 61D (Certificates of
TCA) provides for matters that can be the subject of an evidentiary
certificate signed by a person on behalf of the TCA. The TCA is defined
by Amendment 12 as meaning Transport Certification Australia Limited
ACN 113 3769 936. The TCA is a national body (public company)
established by road transport authorities of State, Territory and
Commonwealth governments to administer the intelligent access program.
The definition of "intelligent access program" is provided in Amendment
8.
The matters the evidentiary certificate can relate to are the identification of
the intelligent access map, or a document that is a copy of an intelligent
access map or part of an intelligent access map (the map issued by the TCA
showing the national road network), for a specified date or for a specified
period (new section 61D(1)); the identification of an approved intelligent
transport system (new section 61D(2)(a)); and the specified parties that
make up part of the operating model for the IAP (i.e. the IAP Service
Provider and IAP Auditor) (new section 61D(2)(b) and (2)(c)). The new
section 61D(3) provides that a person who signs a certificate mentioned in
subsection (1) or (2), on behalf of the TCA, is presumed, unless the
contrary is proved, to be properly authorised by the TCA to sign the
certificate on its behalf. The new section 61D(4) provides definitions for
"IAP auditor" and "IAP service provider".
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Transport Legislation Amendment Bill 2007
Clause 67A also inserts a new section 61E (Intelligent access map) into the
TORUM Act. The definition of "intelligent access map" is provided by
Amendment 8. The new section 61E(1) provides that an intelligent access
map, or document that is a copy of an intelligent access map or part of the
intelligent access map, as issued by the TCA for a specified date or for a
specified period:
� is admissible in a proceeding under a transport Act relating to a heavy
vehicle; and
� is presumed, unless the contrary is proved, to be a correct
representation of the national road network or part of the national road
network.
New sections 61E(2) and 61E(3) provide that if a defendant wishes to
challenge the matters mentioned in subsection (1), written notice of the
grounds of challenge must be given to the chief executive at least 14 days
before the day fixed for the hearing of the charge. These new provisions
reflect the technical nature of the matters covered in subsection (1) and
corresponding greater preparation time and cost when these matters are
contested in court. However, Amendments 14 to 16 amend clause 83 of the
Bill, which inserts a new section 124A (Additional ground of challenge not
stated in written notice required under particular provisions) into the
TORUM Act, to provide a basis by which the defendant may raise a ground
of challenge to the evidence at a hearing that was not stated in a written
notice.
Clause 67A also inserts a new section 61F (Approved intelligent transport
system) into the TORUM Act. The new section 61F(1) provides that an
approved intelligent transport system, including all equipment and software
that makes up the system, is presumed, unless the contrary is proved, to
have operated correctly on any particular occasion. Without limiting
subsection (1), the new section 61F(2) provides that information is
presumed, unless the contrary is proved, to be correctly generated,
recorded, stored, displayed, analysed, transmitted and reported by the
system. Without limiting subsection (1) and (2), the new section 61F(3)
provides that information generated by an approved intelligent transport
system is presumed, unless the contrary is proved, not to have been
changed by being recorded, stored, displayed, analysed, transmitted or
reported by the system. The new section 61F(4) provides that if contrary
evidence that particular information recorded or stored by an approved
intelligent transport system is not a correct representation of the
information generated by the system, the presumption in subsection (3)
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Transport Legislation Amendment Bill 2007
continues to apply to the remaining information recorded or stored by the
system.
New sections 61F(5) and 61F(6) provide that if a defendant wishes to
challenge the matters listed in subsections (5)(a) to 5(c), written notice of
the grounds of challenge must be given to the chief executive. The purpose
and intended operation of these sections is consistent with the new sections
61E(2) and 61E(3) detailed above. Finally, new section 61F(7) provides
that section 61F does not limit existing sections 60(6) or 61 of the TORUM
Act, which already provide for evidentiary provisions.
Clause 67A also inserts a new section 61G (Reports and statements made
by approved intelligent transport system) into the TORUM Act. The new
section 61G(1) provides that a report made by the approved intelligent
transport system is presumed, unless the contrary is proved:
� to have been properly made by the system;
� to be a correct representation of the information generated, recorded,
stored, displayed, analysed, transmitted and reported by the system;
� to be admissible in a proceeding under a transport Act relating to a
heavy vehicle; and
� to be evidence of the matters stated within it.
New section 61G(2) clarifies that the presumption in subsection (1)(c) does
not apply to information that has been manually entered into the system by
an operator or driver of a heavy vehicle. The new section 61F(3) provides
that if it is established by contrary evidence that part of a report made by an
approved intelligent transport system is not a correct representation of
particular information generated, recorded, stored, displayed, analysed,
transmitted or reported by the system, the presumption in subsection (1)(a)
continues to apply to the remaining parts of the report.
New sections 61G(4) and 61F(5) provide that if a defendant wishes to
challenge the matters listed in subsections (4)(a) to 4(c), written notice of
the grounds of challenge must be given to the chief executive. The purpose
and intended operation of these sections is consistent with the new sections
61E(2) and 61E(3), detailed above. Finally, new section 61G(6) provides
that section 61F does not limit existing sections 60(6) or 61 of the TORUM
Act
Amendment 7 amends clause 77 of the Bill which amends Schedule 4
(Dictionary) of the TORUM Act. The amendment inserts a definition for
"approved intelligent transport system".
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Transport Legislation Amendment Bill 2007
Amendment 8 amends clause 77 of the Bill which amends Schedule 4
(Dictionary) of the TORUM Act. The amendment inserts definitions for
"intelligent access map" and "intelligent access program".
Amendment 9 amends clause 77 of the Bill which amends Schedule 4
(Dictionary) of the TORUM Act. The amendment makes a minor change
to the definition of "intelligent transport system".
Amendment 10 amends clause 77 of the Bill which amends Schedule 4
(Dictionary) of the TORUM Act to correct a typographical error in a
measurement which appears in the definition of "severe risk breach lower
limit".
Amendment 11 amends clause 77 of the Bill which amends Schedule 4
(Dictionary) of the TORUM Act to correct a typographical error in a
measurement which appears in the definition of "substantial risk breach
lower limit".
Amendment 12 amends clause 77 of the Bill which amends Schedule 4
(Dictionary) of the TORUM Act. The amendment inserts a definition for
"TCA" as meaning Transport Certification Australia Limited ACN 113 379
936. The TCA is a national body (public company) established by road
transport authorities of State, Territory and Commonwealth governments to
administer the intelligent access program.
Amendment 13 amends clause 78(2) of the Bill which amends section 62
(Proceedings for offences) in the TORUM Act. The amendment replaces
the reference to "3 years" with "5 years". Identifying drivers in hit-and-run
crashes can be very difficult, and there can, on occasion, be a delay in
identifying an offender after a hit-and-run offence is committed. A period
of 5 years in which to commence proceedings is more effective in ensuring
that hit-and-run drivers are able to be dealt with by the justice system.
Amendment 14 amends clause 83 of the Bill which inserts a new section
124A (Additional ground of challenge not stated in written notice required
under particular provisions) into the TORUM Act.
Section 124A(1) specifies that the section applies to a hearing in relation to
which a person has given written notice under section 80(27), 118(4),
119(1) and 124(4). Section 124A(2) provides a basis by which a person
may raise a ground of challenge to the evidence at a hearing that was not
stated in the written notice previously given. Section 124(3) provides that
the court may adjourn the hearing to a time, and on terms as to costs, the
court considers appropriate where a person raises a ground at the hearing
that was not stated in a written notice under section 80(27), 118(4), 119(1)
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Transport Legislation Amendment Bill 2007
and 124(4). Finally, section 124(4) provides that subsection (3) does not
otherwise limit the powers of the court.
The present amendment expands section 124A(1) to include a reference to
the written notices specified in sections 61E(2), 61F(5) and 61G(4).
Amendment 15 amends clause 83 of the Bill which inserts a new section
124A (Additional ground of challenge not stated in written notice required
under particular provisions) into the TORUM Act. The present amendment
expands section 124A(2) to include a reference to the written notices
specified in sections 61E(3), 61F(6) and 61G(5).
Amendment 16 amends clause 83 of the Bill which inserts a new section
124A (Additional ground of challenge not stated in written notice required
under particular provisions) into the TORUM Act. The present amendment
expands section 124A(3) to include a reference to the written notice
specified in sections 61E(2), 61F(5) and 61G(4).
Amendment 17 makes minor editorial amendments to the Schedule of the
Bill to correct cross references.
� State of Queensland 2007