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

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

No. 93 of 2009

table of provisions

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Amendment of the Marine Act 1988

3Amendment of definition section

4Effecting registration, renewal or transfer

5New Part 7A inserted

Part 7A—Impoundment, Immobilisation and Forfeiture of Recreational Vessels

Division 1—Preliminary

62APart 7A definitions

62BPart does not affect other penalties

62CPart has prospective application

Division 2—Impoundment or immobilisation of recreational vessels

62DPowers of police

62ESeizure of recreational vessel

62FSurrender of recreational vessel

62GImpoundment or immobilisation of a recreational
vessel

62HAuthorised persons

62INotice to operator, owner or registered person

62JContent of notice

62KReview by a senior police officer

62LRelease of recreational vessel by Victoria Police

62MAppeal rights

62NOffences

62ORecovery of recreational vessel

62PCrown to pay costs if operator found not guilty or charges not proceeded with

Division 3—Impoundment, immobilisation or forfeiture of recreational vessels by court order

62QImpoundment or immobilisation order

62RForfeiture order

62SApplication for an impoundment or immobilisation
order or a forfeiture order

62TNotice of application

62UInterest in recreational vessel not to be transferred

62VNotice in case of 2 or more charges

62WDirection not to transfer registration or register recreational vessel

62XDirector not to transfer registration or register recreational vessel

62YCessation of direction under this Act does not affect
any suspension

62ZHearing of application

62ZAApplication for variation of order

62ZBWhen order takes effect

62ZCPolice powers

62ZDLiability for costs of impoundment or immobilisation

62ZEOwnership rights

62ZFThird party protection from forfeiture order

Division 4—Search and seizure warrants

62ZGApplication for search and seizure warrant

62ZHSearch and seizure warrant

62ZIRecord of proceedings for search and seizure warrant

62ZJAnnouncement before entry

62ZKCopy of search and seizure warrant to be given to occupier

62ZLUse of assistants to execute search and seizure warrant

62ZMApplication of Magistrates' Court Act1989

62ZNExpiry of search and seizure warrant

62ZOReport on execution of search and seizure warrant

62ZPObstruction or hindrance of person executing search a
nd seizure warrant

Division 5—Disposal of recreational vessels

Subdivision 1—Disposal of recreational vessels, items and things

62ZQSale or disposal of uncollected recreational vessels
and items

Subdivision 2—Disposal of recreational vessels, items or things if forfeiture order has taken effect

62ZRSale or disposal of recreational vessel subject to forfeiture order

62ZSApplication of proceeds of sale

Subdivision 3—Disposal of recreational vessels, items or things subject to disposal order

62ZTDisposal of recreational vessel, item or thing subject
to disposal order

62ZUNotice to be given of intention to apply for disposal order

62ZVApplication for disposal order

62ZWHearing of application for and making of disposal
order

62ZXApplication of proceeds of sale

Division 6—Miscellaneous

62ZYService of notices under Part 7A

6Exclusion orders

7Insertion of new section 85ATA

85ATACorporations displacement provision

8New Part 10AA inserted

Part 10AA—Prohibition of Use of Recreational Vessels and Hire and Drive Vessels

Division 1—Preliminary

112APart 10AA definitions

112BPart does not affect other penalties

112CPart has prospective application

Division 2—Embargo notices and prohibition directions

112DPower to issue embargo notices

112EPolice power to prohibit operation of vessels

Division 3—Authorised officers

112FAppointment

112GIdentity cards

112HReturn of identity cards

112IProduction of identity card

9Subject matter for regulations

Part 3—Amendment of the Port Services Act 1995

10Definitions

11New Part 4A inserted

Part 4A—Regulation of Towage Services

Division 1—Preliminary

73ADefinitions

Division 2—Towage requirements

73BTowage requirements determination

73CProcess for making a towage requirements
determination

73DEntitlement to make submissions

Division 3—Notification of towage service providers

73EOffence to provide towage services without
notification

73FMaking notification

73GProcedure for acknowledgment of notification

73HPeriod for which notification remains in force

73IRecord of towage service providers

Division 4—Towage conditions

73JDetermination of towage conditions

73KLimitations on making towage conditions
determinations

73LService and publication of determination

73MComing into effect of towage conditions

73NProcess for making towage conditions determination

73OCompliance with determined towage condition

Division 5—General matters

73PReview by VCAT

73QPeriod for making application to VCAT

73RRepeal of Part

12New Part 5B inserted

Part 5B—Powers as to certain hazardous
or polluting activities or things

Division 1—Preliminary

88IDefinitions

Division 2—Pollution abatement

88JPollution abatement

88KRecovery of costs of clean up

88LRelationship with the Environment Protection Act1970

Division 3—Hazardous port activities

88MHazardous port activity notice

88NHazardous port activity direction

88OOffence not to comply with hazardous port activity direction

Division 4—Abandoned or unclaimed goods or things

88POffence to leave things in port waters or on port land

88QRemoval of things

88RPowers when moving things

88SRequirement to make enquiries as to owner of thing

88TDisposal of thing

88URecovery of costs

88VPayment of compensation

88WProceeds of disposal where owner not located

13Insertion of section after section 96

97Power to prosecute

14Regulation making powers

Part 4—Amendment of the Transport Act 1983

15New Part VIIA inserted in the Transport Act 1983

Part VIIA—Enforcement and Related
Powers for the Port of Melbourne

Division 1—Preliminary

230KDefinition

230LAppointment

230MIdentity cards

230NReturn of identity cards

230OProduction of identity card

Division 2—Powers of entry and search of vessels

230PPower to enter and inspect vessels

230QProduction of identity card by port safety officers
before vessel searches

230RConsent not needed for inspections

Division 3—Powers of entry and search of premises

230SEntry of premises with consent

230TEntry of premises without consent

230UPowers that may be exercised on entry

230VSecuring a site

230WOffence to enter secured site

Division 4—Provisions as to use of or seizure of equipment
or goods

230XUse of equipment to examine or process things

230YCopies of certain things seized to be given

230ZAccess to seized things

230ZARetention and return of seized documents or things

230ZBMagistrates' Court may extend 3 month period

Division 5—General

230ZCRequirement to assist port safety officer during entry

230ZDProtection against self-incrimination

230ZEPersons who may bring proceedings

Part 5—Amendment of the Road Safety Act 1986

16Suspension of approval of alcohol interlock supplier

17Conditions on approvals

18New sections 50AAIA, 50AAIB and 50AAIC inserted

50AAIAPower of immediate suspension

50AAIBInquiry

50AAICEffect of suspension

19Impoundment regime

20Disclosure of information

21New sections 92A and 92B inserted

92AMinister may make declaration in exceptional circumstances

92BDisclosure of personal information in exceptional circumstances

22Exemptions from fatigue management requirements

23Statute law revision

Part 6—Amendment of the Road Management Act2004

24Powers of a road authority

25Responsible road authority

26Removal of stationary vehicles

27Removal of abandoned property

28Regulations

29Power to move other obstructions

Part 7—Amendment of the Melbourne City Link Act1995

30Repeal

31Statute law revision

Part 8—Amendment of the Accident Towing Services Act2007

32Roster entitlements

33New sections inserted after section 140H

140IOffence not to carry permit when driving

140JOffence not to produce permit when asked

34Direction to state name and address

35Regulation making powers

Part 9—Amendments relating to VicRoads

Division 1—Transport Act 1983

36Amendment of section 16—Objects and functions of Roads Corporation

Division 2—EastLink Project Act 2004

37Amendment of section 3—Definitions

38New section 4A inserted

4AFunctions and powers of VicRoads

39Consequential amendments

40New Part 12 inserted

Part 12—Transfer of project from the southern and eastern Integrated Transport Authority to VicRoads

260Definitions

261Transfer of the Project

262Property transferred to VicRoads

263Transfer subject to encumbrances

264Substitution of party to agreement

265Instruments

266Proceedings

267Interests in land

268Action by Registrar of Titles

269Taxes

270Evidence

271Transfer of employees

272Validity of things done under this Part

Division 3—Southern and Eastern Integrated Transport
Authority Act2003

41Amendment of section 3—Definitions

42Repeal of section 4—The EastLink Project

Part 10—Amendment of the Major Transport Projects Facilitation Act 2009

43Statute law revision

Part 11—Amendment of the Crimes Act 1958

44New section 317B inserted

317BInterpretation

45Culpable driving causing death

46New section 615 inserted in Crimes Act 1958

615Transitional provision—Transport Legislation Amendment (Hoon Boating and Other
Amendments) Act 2009

47Evidentiary provisions in Marine Act 1988

48Cancellation of operator licence under Marine Act1988

49Consequential amendments

Part 12—Repeal

50Repeal of Act

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Endnotes

SectionPage

Victoria

SectionPage

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

No. 93 of 2009

[Assented to 15 December 2009]

Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009
No. 93 of 2009

The Parliament of Victoriaenacts:

Part 12—Repeal

Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009
No. 93 of 2009

Part 1—Preliminary

1Purposes

The purposes of this Act are—

(a) to amend the Marine Act 1988—

(i)to provide for embargo notices to be issued prohibiting the operation of a recreational vessel;

(ii)to provide for the giving of directions prohibiting a person from operating any recreational vessel or a hire and drive vessel for a specified period in certain circumstances;

(iii) to enable the seizure and impoundment or immobilisation of recreational vessels in certain circumstances;

(iv)to allow the court to order the impoundment, immobilisation or forfeiture of recreational vessels in certain circumstances;

(v)to make further provision in relation to minor matters in that Act;

(b) to amend the Port Services Act 1995 to make provision—

s. 1

(i)in relation to the provision of towage services;

(ii)as to certain hazardous or polluting activities or things;

(iii)as to other minor matters;

(c) to amend the Transport Act 1983, to make further provision as to the functions of the Roads Corporation and as to enforcement powers and other minor matters;

(d) to amend the Road Safety Act 1986 in relation to—

(i)disclosure of information; and

(ii)suppliers of alcohol interlocks; and

(iii)fatigue management requirements for rail replacement bus services, emergency services and bus services provided in response to an emergency;

(e) to amend the Road Management Act 2004 in relation to—

(i)clearance of obstructions on roads; and

(ii)regulation-making powers;

(f) to amend the MelbourneCity Link Act 1995 to repeal a redundant provision;

(g) to amend the Accident Towing Services Act 2007 to make further provision in relation to the holders of tow truck trainee permits and other minor matters;

(h) to make amendments to the EastLink Project Act 2004 and the Southern and Eastern Integrated Transport Authority Act 2003 in relation to the EastLink project;

(i) to make amendments to the Major Transport Projects Facilitation Act 2009of a statute law revision nature;

(j)to amend the Crimes Act 1958 to extend the offences of culpable driving causing death and dangerous driving causing death or serious injury to the operating of vessels and to make consequential amendments to other Acts;

(k) to make other amendments of a statute law revision nature.

2Commencement

s. 2

(1)Section 1 and this section come into operation on the day after the day on which this Act receives the Royal Assent.

(2) Section 23(3) is deemedto have come into operation on 9 November 2009.

(3) Subject to subsection (4), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(4) If a provision referred to in subsection (3) does not come into operation before 1 September 2011, it comes into operation on that day.

s. 2

______

Part 2—Amendment of the Marine Act 1988

3Amendment of definition section

s. 3

See:
Act No.
52/1998.
Reprint No. 7
as at
12 December 2007
and amending
Act No
17/2009.
LawToday:
www.
legislation.
vic.gov.au

After section 3(4) of the Marine Act 1988insert—

"(5)In the case of a contravention in the port of Melbourne of a relevant marine safety law that is constituted by a contravention of the Port Services Act 1995, for the purposes of Divisions 4 and 5 of Part 8, a reference to an inspector is taken to include a reference to a port safety officer appointed under Part VIIA of the Transport Act 1983.".

4Effecting registration, renewal or transfer

In section 10(1) of the Marine Act 1988, after "the regulations" insert "and Division 3 of Part7A".

5New Part 7A inserted

After Part 7 of the Marine Act 1988 insert—

'Part 7A—Impoundment, Immobilisation and Forfeiture of Recreational Vessels

Division 1—Preliminary

62APart 7A definitions

(1)In this Part—

appeal period, in relation to a conviction or an impoundment or immobilisation order or a forfeiture order, means the period ending—

(a)if the period provided for the lodging of an appeal against the conviction or order has ended without such an appeal having been lodged, at the end of that period; or

(b)if an appeal against the conviction or order has been lodged, when the appeal is abandoned or finally determined;

authorised person means a person authorised by a member of the police force under section 62H;

conviction, in relation to a relevant offence, includes a finding of guilt of the relevant offence without the recording of a conviction;

s. 5

designated costs means the cost of impounding or immobilising a recreational vessel under this Part including, where relevant, the cost of—

(a)moving the recreational vessel to a holding yard or place where the recreational vessel is to be immobilised; and

(b)storing the recreational vessel at the holding yard or place where the recreational vessel is immobilised; and

(c)releasing the recreational vessel from the holding yard or from immobilisation—

and includes any additional costs incurred if the recreational vessel is impounded or immobilised for longer than the designated period or the period specified under an impoundment or immobilisation order;

designated period, in relation to a recreational vessel, means the period of 48hours beginning with the seizure or surrender of the recreational vessel under section 62E or 62F, but if the period expires outside of normal business hours, the period extends to 9.00a.m. on the next business day, being a day other than a Saturday, a Sunday or a public holiday appointed under the Public Holidays Act 1993;

disposal order means an order made under section 62ZW;

forfeiture order means an order made by a court under section 62R;

s. 5

holding yard means a place used for the storage of recreational vessels impounded under this Part;

impoundment or immobilisation order means an order made by a court under section 62Q;

landing place includes the following—

(a)an intersection between land and water at which it is reasonably safe to land a vessel;

(b)a place intended for the landing or berthing of vessels, including, but not limited to, a wharf, boat ramp, marina, pier or jetty;

member of police personnel has the same meaning as in the Police Regulation Act 1958;

operator, in relation to a recreational vessel, means the person who is operating (within the meaning of Part 10A) the recreational vessel;

public place includes, but is not limited to—

(a)any public place within the meaning of public placein the Summary Offences Act 1966; and

(b)State waters;

s. 5

registered person, in relation to a recreational vessel, means the person who is registered as the owner or operator of the recreational vessel in accordance with regulations made under this Act;

relevant court, in relation to an application made under this Part, means—

(a)the court with jurisdiction to hear and determine the relevant offence to which the application relates; or

(b)if an application is made after the sentencing of the operator for a relevant offence, the Magistrates' Court;

relevant offence means an offence against section 22;

safe landing place means a landing place at which it is safe to immobilise the relevant vessel for the balance of the designated period, taking into account the weather conditions and facilities available during the designated period;

search and seizure warrant means a warrant issued under section 62ZH(1);

senior police officer means a member of the police force of or above the rank of Inspector.

(2)For the purposes of an application for an impoundment or immobilisation order or a forfeiture order, charges for more than one relevant offence arising out of the same single set of circumstances are to be treated as a charge for one relevant offence.

(3)For the purposes of subsection (2), a single set of circumstances is constituted by one continuous period during which a person continues to operate or be in charge of a recreational vessel.

62BPart does not affect other penalties

s. 5

The impoundment, immobilisation or forfeiture of a vessel under this Part arising out of the commission of a relevant offence is in addition to, and does not limit or otherwise affect, any penalty that may be imposed on the person for the relevant offence other than under this Part.

62CPart has prospective application

This Part applies only to relevant offences committed on or after the commencement of section5 of the Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009.

Division 2—Impoundment or immobilisation of recreational vessels

62DPowers of police

(1)If a member of the police force believes on reasonable grounds that a recreational vessel is being or has been used in the commission of a relevant offence, he or she may—

(a)seize the recreational vessel or require it to be surrendered;

(b)impound the recreational vessel for the designated period;

(c)immobilise the recreational vessel for the designated period;

s. 5

(d)authorise any person under section 62H to assist in seizing, impounding or immobilising the recreational vessel.

(2)If a member of the police force has exercised a power to seize, impound or immobilise a recreational vessel under this Division in relation to a particular relevant offence and the recreational vessel has since been released—

(a)the power to seize, impound or immobilise that recreational vessel under this Division for that particular relevant offence may not be exercised again; and

(b)an embargo notice must not be issued in respect of the recreational vessel for that particular relevant offence; and

(c)a prohibition direction must not be issued to the operator of the vessel at the time of the particular relevant offence in respect of that offence.

(3)For the purposes of this section—

embargo notice means a notice under section112D;

prohibition direction means a direction to a person under section112E.

62ESeizure of recreational vessel

s. 5

(1)For the purposes of impounding or immobilising a recreational vessel under this Part, a member of the police force may seize the recreational vessel—

(a)from a public place; or

(b)from a place that is not a public place with the consent of the owner or occupier of that place; or

(c)from a place that is not a public place with a search and seizure warrant.

(2)The period within which a recreational vessel may be seized under subsection (1) is—

(a)in the case of seizure from a public place or a place that is not a public place with the consent of the owner or occupier of that place—

(i)48 hours after the alleged commission of the relevant offence; or

(ii)if a notice is served under section62F(1), 10 days after the expiry of the period specified in that notice; or

(b)in the case of seizure from a place that is not a public place under a search and seizure warrant, the period specified in that warrant.

(3)In order to seize a recreational vessel under subsection(1), a member of the police force may—

(a)board or enter the recreational vessel, using reasonable force if necessary;

(b)operate or move the recreational vessel by any reasonable means, including, but not limited to, by trailer, motor vehicle or vessel;

(c)if, after having taken reasonable steps to obtain the keys, the keys are not available, cause any locking device or other feature of the recreational vessel that is impeding the seizure of the recreational vessel to be removed, dismantled or neutralised;

(d)seize, operate or move a trailer, motor vehicle or other thing on which the recreational vessel is resting or by which the recreational vessel is transported by the operator, owner or registered person.

62FSurrender of recreational vessel

s. 5

(1)If a member of the police force believes on reasonable grounds that a recreational vessel has been used in the commission of a relevant offence, he or she may serve a notice on the registered person or owner of the recreational vessel requiring the surrender of the recreational vessel.

(2)A notice served under subsection (1) must—

(a)be served within 10 days of the member of the police force forming the belief that the recreational vessel has been used in the commission of a relevant offence; and