Transport Legislation Miscellaneous Amendments Act 2009

Transport Legislation Miscellaneous Amendments Act 2009

No. 17 of 2009

table of provisions

SectionPage

Part 1—Preliminary

1Purpose

2Commencement

Part 2—Marine Act 1988

3Amendments relating to the Australian Builders Plate Standard

4New Divisions 4, 5, 6 and 7 inserted in Part 8

Division 4—Improvement notices

85AAImprovement notices

85ABImprovement notices—operation of vessel or closure of mooring or other physical structure associated with a vessel

85ACContravention of improvement notice

85ADAmendment of improvement notices

85AECancellation of improvement notices

85AFClearance certificates for improvement notices

85AGProceedings for offences not affected by improvement notices or clearance certificates

Division 5—Prohibition notices

85AHProhibition notice

85AIContravention of prohibition notice

85AJAmendment of prohibition notice

85AKWithdrawal of prohibition notices

85ALCertificates that matters that give rise to immediate
risks to safety remedied

85AMProceedings for offences not affected by prohibition notices or certificates issued under section 85AL

Division 6—Review of decisions relating to improvement
and prohibition notices

85ANReviewable decisions

85AOReview by the Director

85APReview by VCAT

Division 7—Sentencing orders in relation to relevant
marine safety laws

85AQCommercial benefits penalty order

85ARSupervisory intervention order

85ASContravention of supervisory intervention order

85ATExclusion orders

85AUContravention of exclusion order

85AVRelease on the giving of a safety undertaking

85AWVariation or breach of orders under section 85AV

5Amendments consequential to amendments made by section 4

Part 3—Port Services Act 1995

6Amendment of section 13—Functions of Port of Melbourne Corporation

7Amendment of section 17D—Functions of Port of Hastings Corporation

8Amendment of section 21—Functions and powers of VRCA

9New Part 6B—Port Development Strategy

Part 6B—Port Development Strategy

91JDefinitions

91KPort Development Strategy

91LConsultation requirements

91MGuidelines

91NMinisterial directions

Part 4—Road Management Act 2004

10Infrastructure manager

11Changes to Utilities' Infrastructure Reference Panel

12Providers of public transport

13Definition of relevant Minister

14Principal object and management principles

15New section 42A inserted—Specified roads

42ASpecified roads

16Amendment of section 48A—Definitions

17Sections 48B and 48C substituted

48BDuty of responsible road authority, infrastructure manager or works manager in relation to works on or
in immediate vicinity of rail infrastructure or rolling stock

18New sections 48DA, 48DB and 48DC inserted

48DAOnly one offence committed

48DBDuty of rail operator in relation to works on or in immediate vicinity of road infrastructure

48DCExercising a power or performing a duty safely

19Section 48E substituted and sections 48EA, 48EB and 48EC inserted

48EOnly one offence committed

48EANotification by responsible road authority,
infrastructure manager or works manager

48EBNotification by works contractor

48ECNotification by rail operator

20Amendments relating to notification requirements

21Further amendments relating to notification requirements

22Consequential amendment to section 48G

23New Division 4B inserted in Part 4

Division 4B—Specific provisions relating to bus stop infrastructure and tram stop infrastructure

48HDefinitions

48IApplication of Division

48JPowers of Secretary

48KOffence in relation to removal, demolition or
relocation

48LResolution of disputes

48MGuidelines

48NInformation to be provided by a municipal council

48OConsent of Director of Public Transport required to install, attach or affix rubbish bin or cigarette disposal unit

48PPower of Director of Public Transport to remove
rubbish bin or cigarette disposal unit installed, attached or affixed without consent

24Amendment of section 132—Regulations

Part 5—Southern and Eastern Integrated Transport Authority Act 2003

25Amendment of section 3—Definitions

26Amendment to heading to section 4

27New section 4A inserted

4ARoad Transport-Related Projects

Part 6—Transport Act 1983

28New section 84AB inserted

84ABChief Investigator may require persons to attend and answer questions

29New section 85DA inserted

85DAReports not admissible in evidence

Part 7—Consequential Amendments to other Acts

30EastLink Project Act 2004

31Melbourne City Link Act 1995

32Road Safety Act 1986

Part 8—Repeal of Amending Act

33Repeal of amending Act

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Endnotes

SectionPage

Victoria

SectionPage

Transport Legislation Miscellaneous Amendments Act 2009[†]

No. 17 of 2009

[Assented to 12 May 2009]

Transport Legislation Miscellaneous Amendments Act 2009
No. 17 of 2009

The Parliament of Victoriaenacts:

Part 8—Repeal of Amending Act

Transport Legislation Miscellaneous Amendments Act 2009
No. 17 of 2009

Part 1—Preliminary

1Purpose

The purpose of this Act is to—

(a)make miscellaneous amendments to the Marine Act 1988, the Port Services Act 1995, the Road Management Act 2004and the Southern and Eastern Integrated Transport Authority Act 2003to facilitate the operation of those Acts;

(b)amend the Transport Act 1983 in relation tothe powers of the Chief Investigator to obtain information;

(c)consequentially amend certain other Acts.

2Commencement

s. 2

(1)This Act (except sections 3,4, 5, 20 and 21) comes into operation on the day after the day on which it receives the Royal Assent.

(2)Sections 4, 5, 20 and 21 come into operation on 1July 2009.

(3)Subject to subsection (4), section 3 comes into operation on a day to be proclaimed.

(4)If section 3 does not come into operation before 1January 2010, it comes into operation on that day.

______

Part 2—Marine Act 1988

3Amendments relating to the Australian Builders Plate Standard

s. 3

See:
Act No.
52/1988.
Reprint No. 7
as at 12December 2007.
LawToday:
www.
legislation.
vic.gov.au

(1)In section 3(1) of the Marine Act 1988 after the definition of approved health professionalinsert—

"Australian Builders Plate Standard means the "National Standard for the Australian Builders Plate for Recreational Boats" as prescribed by regulations made under the Fair Trading Act 1999;".

(2)In section 13(1) of the Marine Act 1988 after "the regulations" insert "or the Australian Builders Plate Standard".

(3)In section 77(1)(b) of the Marine Act 1988 after "the regulations" insert "or the Australian Builders Plate Standard".

(4)After section 77(1)(b)(iii) of the Marine Act 1988insert—

"(iiia)the information required to be on a vessel; or".

(5)In section 77(1)(d) of the Marine Act 1988 after "equipment" insert ", builders plate".

(6)In section 82D(a) of the Marine Act 1988 after "the regulations" insert "and the Australian Builders Plate Standard".

(7)After section 101A(1) of the Marine Act 1988 insert—

"(1A)Subsection (1) does not prevent the disclosure or use of information obtained by the Director or a relevant person under this Act if the disclosure or use is made for the purposes of enabling—

(a)the Director of Consumer Affairs Victoria under the Fair Trading Act 1999; or

(b)a person authorised by the Director of Consumer Affairs Victoria under the Fair Trading Act 1999 for the purposes of section 142A of that Act—

to bring proceedings for an offence against the Fair Trading Act 1999, or regulations made under that Act, relating to the Australian Builders Plate Standard or to receive information relating to compliance with the Australian Builders Plate Standard.".

(8)In Schedule 5 to the Marine Act 1988, in item 47 after "accompany applications" insert ", including prescribing information in respect of compliance with the Australian Builders Plate Standard".

4New Divisions 4, 5, 6 and 7 inserted in Part 8

After Division 3 of Part 8 of the Marine Act 1988 insert—

s. 4

"Division 4—Improvement notices

85AAImprovement notices

(1)An improvement notice may only be served on a relevant person if the relevant person is engaged in commercial marine operations.

(2)The Director or an inspector may serve on a relevant person an improvement notice if the Director or inspector believes on reasonable grounds that the relevant person—

(a)is contravening a provision of a relevant marine safety law; or

(b)has contravened a provision of a relevant marine safety law in circumstances that make it likely the contravention will continue or be repeated; or

s. 4

(c)in the case of a relevant person who is the holder of a certificate, licence or registration—

(i)is contravening a condition or restriction of the certificate, licence or registration; or

(ii)has contravened a condition or restriction of the certificate, licence or registration in circumstances that make it likely the contravention will continue or be repeated.

(3)The Director or an inspector may serve on the relevant person an improvement noticerequiring the relevant person toremedy the contravention or likelycontravention, or the matters or activities occasioning the contraventionor likely contravention, within the period specified in the notice.

(4)An inspector must, before serving an improvement notice under this section, inform the Director of his or her intention to do so.

(5)An improvement notice must—

(a)state the basis for the Director's or inspector's belief on which the service of the notice is based;

(b)specify the provision of the relevant marine safety law in respect ofwhich that belief is held;

(c)specify a date (with or without a time) by which the relevant person is required to remedy the contravention or likely contravention or the matters or activities causing the contravention or likely contravention, that the Director or inspector considers is reasonable;

s. 4

(d)include information about obtaining a review of the decision to serve the notice;

(e)set out the penalty for contravening the notice;

(f)include a statement of the effect of section85AG;

(g)state that it is served under this section.

(6)An improvement notice may include directions concerning the measures to be taken to remedy the contravention or likely contravention, or the matters or activities causing the contravention or likely contravention, to which the notice relates.

(7)Without limiting subsection (6), an improvement notice may include a direction that if the relevant person has not remedied the contravention, likely contravention, matters or activities (as the case may be) by the date and time (if any) specified in the notice, an activity to which the notice relates is to cease until the Director or an inspector serves a clearance certificate under section85AF.

85ABImprovement notices—operation of vessel or closure of mooring or other physical structure associated with a vessel

s. 4

(1)Without limiting section 85AA, an improvement notice may require a relevant person to stop operating, or to close a mooring or other physical structure associated with, a vessel—

(a)that the relevant person owns or controls; or

(b)for which the relevant person is responsible.

(2)If an improvement notice requires a relevant person to stop operating, or to close a mooring or other physical structure associated with, a vessel, the relevant person mustpublish a notice of the required stoppage or closure in a newspaper circulating—

(a)generally in the State; and

(b)in the area in which the vessel is operated or the mooring or other physical structure is located.

85ACContravention of improvement notice

(1)A relevant person on whom an improvement notice has been served must not refuse or fail to comply with the notice unless the relevant person has a reasonable excuse.

Penalty:In the case of a natural person, 500penalty units;

In the case of a body corporate, 2500penalty units.

(2)An offence against subsection (1) is an indictable offence.

Note

However, the offence may be heard and determined summarily (see section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989).

85ADAmendment of improvement notices

s. 4

(1)An improvement notice served by the Director may be amended by the Director.

(2)An improvement notice served by an inspectormay be amended by any inspector or the Director.

(3)An amendment of an improvement notice is effected by service on the relevant person affected of a notice stating the terms of the amendment.

(4)An amendment of an improvement notice is ineffective if it purports to deal with a contravention of a different provision of a relevant marine safety law from that dealt with in the improvement notice as first served.

(5)A notice of an amendment of an improvement notice must—

(a)state the reasons for the amendment;

(b)include information about obtaining a review of the decision to amend the notice;

(c)state that it is served under this section.

85AECancellation of improvement notices

(1)An improvement notice served on a relevant person may only be cancelled by the Director.

(2)Notice of cancellation of an improvement notice is required to be served on the relevant person affected.

85AFClearance certificates for improvement notices

s. 4

(1)This section applies if the Director or an inspector is satisfied that a relevant person served with an improvement notice has complied with all the requirements of, or a requirement of, that notice.

(2)The Director or an inspector must serve a clearance certificate on the relevant person to the effect that (as the case requires)—

(a)all of the requirements of the improvement notice have been complied with; or

(b)the specific requirement of the improvement notice has been complied with.

(3)The clearance certificate must be served as soon as practicable after the Director or an inspector is so satisfied.

(4)A requirement of the improvement notice to which the clearance certificate relates ceases to be operative on receipt by the relevant person of that certificate.

85AGProceedings for offences not affected by improvement noticesor clearance certificates

(1)The service, amendment or cancellation of an improvement notice does not affect any proceedings for an offence against a relevant marine safety law in connection with any matter in respect of which the improvement notice was served.

(2)The issue of a clearance certificateunder section 85AF in respect of an improvement notice does not affect any proceedings for an offence against a relevant marine safety law in connection with any matter in respect of which the improvement notice was served.

Division 5—Prohibition notices

85AHProhibition notice

s. 4

(1)A prohibition notice may only be served on a person who has or appears to have control over an activity to which this section applies occurring during commercial marine operations.

(2)This section applies if—

(a)an activity is occurring on, or in connection with the operation of, a vessel, that involves or will involve an immediate risk to the safety of a person; or

(b)an activity is occurring at a place where vessels are operated, stored, moored, berthed or placed that involves or will involve an immediate risk to the safety of a person; or

(c)an activity may occur at a place where vessels are operated, stored, moored, berthed or placed that, if it occurs, will involve an immediate risk to the safety of a person; or

(d)an activity may occur at, on, or in the immediate vicinity of, infrastructure relating to the operation, storage, mooring, berthing or placement of a vessel, or vessels, that, if it occurs, will involve an immediate risk to the safety of the operation of the vessel.

(3)If the Director or an inspector believes on reasonable grounds that an activity referred to in subsection (2) is occurring or may occur, theDirector or inspector may serve on a person who has or appears to have control over the activity a prohibition notice prohibiting the carrying out of the activity, or the carrying out of the activity in a specified way, until the Director or inspector serves a certificate under section 85AL.

s. 4

(4)An inspector must, before serving a prohibition notice under this section, inform the Director of his or her intention to do so.

(5)A prohibition notice must—

(a)state the basis for the Director's or inspector's belief on which the service of the notice is based;

(b)specify the activity which the Director or inspector believes involves or will involve the risk and the matters which give or will give rise to the risk;

(c)if the Director or inspector believes that the activity involves a contravention or likely contravention of a provision of a relevant marine safety law, specify that provision and state the basis for that belief;

(d)set out the penalty for contravening the notice;

(e)include information about obtaining a review of the decision to serve the notice;

(f)include a statement of the effect of section 85AM;

(g)state that it is served under this section.

s. 4

(6)A prohibition notice may include directions on the measures to be taken to remedy the risk, activities or matters to which the notice relates, or the contravention or likely contravention mentioned in subsection(5)(c).

(7)A prohibition notice that prohibits the carrying out of an activity in a specified way may do so by specifying one or more of the following—

(a)a vessel is not to be operated;

(b)a place where vessels are operated, stored, moored, berthed or placed, at which the activity is not to be carried out;

(c)infrastructure or part of infrastructure relating to the operation, storage, mooring, berthing or placement of a vessel or a place in the immediate vicinity of infrastructure or vesselsat which the activity is not to be carried out;

(d)any thing that is not to be used in connection with the activity;

(e)any procedure that is not to be followed in connection with the activity.

85AIContravention of prohibition notice

s. 4

(1)A person on whom a prohibition notice is served must not refuse or fail to comply with the notice unless the person has a reasonable excuse.

Penalty:In the case of a natural person, 500penalty units;

In the case of a body corporate, 2500penalty units.

(2)An offence against subsection (1) is an indictable offence.

Note

However, the offence may be heard and determined summarily (see section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989).

85AJAmendment of prohibition notice

(1)A prohibition notice served by the Director may be amended by the Director.

(2)A prohibition notice served by an inspectormay be amended by any inspector or the Director.

(3)An amendment of a prohibition notice served is effected by service on the relevant person affected of a notice stating the terms of the amendment.

(4)An amendment of a prohibition notice served is ineffective if it purports to prohibit the carrying out of an activity that is different from the activity prohibited by the prohibition notice as first served.

(5)A notice of an amendment of a prohibition notice must—

(a)state the reasons for the amendment;

(b)include information about obtaining a review of the decision to amend the notice;

(c)state that it is served under this section.

85AKWithdrawal of prohibition notices

s. 4

(1)A prohibition notice served on a relevant person may only be withdrawn by the Director.

(2)Notice of the withdrawal of a prohibition notice is required to be served on the relevant person affected.

85ALCertificates that matters that give rise to immediate risks to safety remedied

(1)This section applies if the Director or an inspector is satisfied that a relevant person served with a prohibition notice has remedied all of the matters or a matter—

(a)that gave, or will give, rise to an immediate risk to the safety of a person or the operation of a vessel because of the carrying out of the activity; and

(b)specified in the prohibition notice.

(2)The Director or an inspector must serve a certificate on the relevant person to the effect that (as the case requires)—

(a)all of the matters or the matter that gave rise to an immediate risk to the safety of a person or the operation of a vessel because of the activity specified in the prohibition notice have been remedied; or

(b)all of the matters or the matter that could have given rise to an immediate risk to the safety of a person or the operation of a vessel because of the activity specified in the prohibition notice have been remedied.

s. 4

(3)The certificate must be served as soon as practicable after the Director or inspector is so satisfied.

(4)A matter raised in the prohibition notice that has been remedied to the satisfaction of the Director or inspector, and to which the certificate relates, ceases to be operative on receipt by the relevant person of that certificate.

85AMProceedings for offences not affected by prohibition noticesor certificates issued under section 85AL

(1)The service, amendment or withdrawal of a prohibition notice does not affect any proceedings for an offence against a relevant marine safety law in connection with any matter in respect of which the prohibition notice was served.

(2)The issue of a certificateunder section 85AL in respect of a prohibition notice does not affect any proceedings for an offence against a relevant marine safety law in connection with any matter in respect of which the prohibition notice was served.

Division 6—Review of decisions relating to improvement and prohibition notices

85ANReviewable decisions

s. 4

(1)The following table sets out—

(a)decisions made under Divisions 4 and 5 that are reviewable in accordance with this Division (reviewable decisions); and