This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to amend the Road Transport (General) Act 2005 and the
Road Transport (Mass, Loading and Access) Regulation 2005 made under that Act
to provide for:

(a) compliance by vehicle operators and drivers with conditions relating to access
to and use of roads to be monitored by intelligent transport systems, and

(b) the collection, use and disclosure of information obtained by the use of such
intelligent transport systems.

The provisions of the Bill generally reflect the proposals contained in the National
Transport Commission’s national model Bill relating to intelligent access programs.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be
appointed by proclamation.

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Road Transport (General) Amendment (Intelligent Access Program) Bill 2006
Explanatory note
Clause 3 is a formal provision that gives effect to the amendments to the Road
Transport (General) Act 2005 set out in Schedule 1.

Clause 4 is a formal provision that gives effect to the amendments to the Road
Transport (Mass, Loading and Access) Regulation 2005 set out in Schedule 2.

Clause 5 provides for the repeal of the proposed Act after all the amendments made
by the proposed Act have commenced. Once the amendments have commenced the
proposed Act will be spent. Section 30 of the Interpretation Act 1987 provides that
the repeal of an amending Act does not affect the amendments made by that Act.

Schedule 1 Amendment of Road Transport (General)
Act 2005
Schedule 1 [1] inserts proposed section 11A. The proposed section enables
regulations to be made in relation to intelligent transport systems that are required or
permitted to be used by or under a road transport law or any exemption, authority or
condition given or imposed by or under any such law. The regulation-making power
covers areas including conditions, the regulation or prohibition of the collection,
storage, use and disclosure of information obtained by the use of such a system or for
the purposes of a system, the keeping of records, tampering with such systems and
the certification and functions of providers and auditors of such systems. Regulations
may also be made with respect to evidentiary matters relating to information obtained
from such systems and other related matters. An intelligent transport system is a
system involving the use of electronic or other technology that has the capacity and
capability to monitor, collect, store, display, analyse, transmit or report information
relating to vehicles, drivers, operators or other persons involved in road transport.

Schedule 1 [2] enables regulations containing savings and transitional provisions to
be made as a consequence of the enactment of the proposed Act.

Schedule 2 Amendment of Road Transport (Mass,
Loading and Access) Regulation 2005
Permit and notice conditions
The Road Transport (Mass, Loading and Access) Regulation 2005 (the Regulation)
regulates mass and loading of heavy vehicles and combinations and access
conditions to roads for heavy vehicles and combinations. The Regulation sets out
mass, loading and dimension requirements, as well as access requirements, but also
provides for exemptions from certain requirements on conditions. Exemptions are
given under the Regulation in the form of a notice published in the Gazette or a
permit issued by the Roads and Traffic Authority (the RTA). The amendments made
to the Regulation by the Schedule expressly provide for each notice and permit under
the Regulation, that relates to heavy vehicles, to be able to be made subject to a
condition that a vehicle to which it applies, and any driver of the vehicle, participate

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Road Transport (General) Amendment (Intelligent Access Program) Bill 2006
Explanatory note
in a program involving the use of an intelligent transport system to monitor
compliance with the notice or permit.

Schedule 2 [2] amends clause 14 to enable the condition to be imposed on a notice
applying to Class 1 vehicles.

Schedule 2 [3] amends clause 16 to enable the condition to be imposed on a permit
applying to Class 1 vehicles.

Schedule 2 [4] amends clause 22 to enable the condition to be imposed on a notice
or permit applying to Class 2 vehicles.

Schedule 2 [5] amends clause 25 to enable the condition to be imposed on a notice
applying to Class 3 vehicles.

Schedule 2 [6] amends clause 27 to enable the condition to be imposed on a permit
applying to Class 3 vehicles.

Schedule 2 [7] amends clause 36 to enable the condition to be imposed on a permit
applying to certain heavy vehicles.

Operation of intelligent access programs
The Schedule also sets out provisions for the operation of intelligent monitoring
systems, including systems required under concessions under the Regulation or the
Road Transport (General) Act 2005.

Schedule 2 [1] amends the object of the Regulation to reflect the new provisions.

Schedule 2 [8] inserts proposed Part 6A (clauses 72A–72ZF). The proposed Part
contains the following provisions:

Division 1 Preliminary
Proposed clause 72A applies the proposed Part to operators and drivers of vehicles,
and vehicles, that are subject to permits, notices or exemptions under the Regulation
or under the Road Transport (General) Act 2005, to which are attached conditions
requiring participation in a program involving the use of an intelligent transport
system to monitor compliance with the conditions of the notice, permit or exemption.

Proposed clause 72B defines expressions used in the proposed Part, including
concession (a notice, permit or exemption under the Regulation or an exemption
under the Road Transport (General) Act 2005), intelligent access condition (a
condition requiring participation in a program involving the use of an intelligent
transport system to monitor compliance with the conditions of the notice, permit or
exemption), intelligent access system (an intelligent transport system that is installed
in or in relation to a vehicle for the purposes of an intelligent access condition) and
personal information (information or an opinion, whether true or not, and whether
recorded in a material form or not, about an individual whose identity is apparent, or
can reasonably be ascertained, from the information or opinion).

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Road Transport (General) Amendment (Intelligent Access Program) Bill 2006
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Division 2 Intelligent access programs
Proposed clause 72C sets out matters that may be specified in an intelligent access
condition, including the kinds of intelligent transport systems, service providers and
matters to be monitored. Systems and service providers may not be specified unless
certified by Transport Certification Australia Ltd (TCA). Each intelligent transport
system must use the spatial data set issued by TCA (the intelligent access map).

Proposed clause 72D confers on TCA functions relating to the management of the
certification and auditing of intelligent access systems on behalf of the RTA.

Division 3 Operation of intelligent access systems
Proposed clause 72E requires the operator of a vehicle to notify the RTA
immediately of any malfunction in an intelligent access system and also requires the
driver of a vehicle to notify the operator of the vehicle of any such malfunction.

Proposed clause 72F makes it an offence to engage in conduct that results in an
intelligent access system being altered, installed or used with the intention that the
system will fail to collect, store or report intelligent access information or fail to do
so correctly, or to be negligent or reckless as to whether the system will fail to do so.

Proposed clause 72G requires a service provider or TCA to report any suspected
offence under proposed clause 72F (a tampering offence) to the RTA. The proposed
clause also makes it an offence for a service provider or TCA to disclose to any other
person any knowledge of or suspicion about a tampering offence.

Proposed clause 72H requires an auditor of an intelligent access system to report any
suspected tampering offence to the RTA (if an operator or driver is involved) or TCA
(if a service provider is involved). An auditor must also report any other suspected
contravention of the proposed Part by a service provider to TCA.

Proposed clause 72I requires a service provider to make a non-compliance report
about an operator to the RTA if the service provider detects or knows of a breach of
a concession or an electronically generated report indicates apparent tampering.

Proposed clause 72J makes it an offence for an operator of a vehicle to knowingly
give false or misleading information, or knowingly omit anything that makes
information false or misleading in a material particular, that is relevant to the
operation of the vehicle to a service provider with whom the operator has an
agreement for the provision of an intelligent access system. The proposed clause also
makes it an offence if the operator of a vehicle knowingly gives or omits such
information or a thing intending the service provider to enter into such an agreement
with the operator.

Proposed clause 72K makes it an offence for a service provider to knowingly give
false or misleading information, or knowingly omit anything that makes information
false or misleading, in a material particular that is relevant to the operation of the
vehicle to the RTA or TCA.

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Road Transport (General) Amendment (Intelligent Access Program) Bill 2006
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Division 4 Collection, storage, use and disclosure of intelligent access
information
Proposed clause 72L makes it clear that the provisions of the proposed Division are
in addition to any other law.

Proposed clause 72M requires the operator of a vehicle to inform the driver before
the driver begins a journey in the vehicle that the vehicle will be monitored by a
service provider and of matters relating to the information to be collected.

Proposed clause 72N prohibits an operator from using or disclosing any intelligent
access information about a driver that is obtained when the driver is not at work.

Proposed clause 72O contains offences about the collection, storage, use or
disclosure of intelligent access information by service providers. A service provider:

(a) must not collect, store, use or disclose any such information otherwise than as
required or permitted under the Regulation or any other law, and

(b) must take reasonable steps to ensure that information is necessary for or is
directly related to the purpose for which it was collected or a directly related
purpose, not excessive for that purpose and is accurate, up-to-date, complete
and not misleading, and

(c) must keep non-compliance reports, and related data, for at least 4 years, and

(d) must take reasonable steps to destroy any other information after 1 year.

Proposed clause 72P permits service providers to collect, store and use intelligent
access information for compliance purposes. Service providers may disclose the
information for compliance purposes and with the consent of the person concerned.

They may disclose information about an operator of a vehicle (other than a
non-compliance report) to the operator or to another person with the consent of the
operator (if it does not enable another person to be identified).

Proposed clause 72Q contains offences about the collection, storage, use or
disclosure of intelligent access information by TCA. TCA:

(a) must not collect, store, use or disclose any such information otherwise than as
required or permitted under the Regulation or any other law, and

(b) must take reasonable steps to ensure that information is accurate, up-to-date,
complete and not misleading.

Proposed clause 72R permits TCA to collect, store, use and disclose intelligent
access information for the performance of its functions and compliance purposes,
and, with consent, for research purposes. TCA may disclose the information with the
consent of the person concerned. TCA may disclose information about an operator
of a vehicle to the operator, an auditor or the RTA. Information about breaches by a
service provider may be disclosed only to an auditor or the RTA.

Proposed clause 72S contains offences about the collection, storage, use or
disclosure of intelligent access information by auditors. An auditor:

(a) must not collect, store, use or disclose any such information otherwise than as
required or permitted under the Regulation or any other law, and

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Road Transport (General) Amendment (Intelligent Access Program) Bill 2006
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(b) must take reasonable steps to ensure that information is necessary for the
purpose for which it was collected or a directly related purpose, not excessive
for that purpose, accurate, up-to-date, complete and not misleading.

Proposed clause 72T permits an auditor to collect, store, use and disclose intelligent
access information for the performance of its functions and to report breaches and
tampering offences. An auditor may collect information for the purposes of an
intelligent access audit of a service provider. An auditor may disclose information
about an operator of a vehicle to the operator, TCA or the RTA or with the consent
of the person concerned. Information about breaches or tampering offences may be
disclosed only to TCA or the RTA.

Proposed clause 72U prohibits TCA or an auditor from using or disclosing intelligent
access information unless reasonable steps are first taken to ensure that it is accurate,
up-to-date, complete and not misleading.

Proposed clause 72V requires service providers, TCA and auditors to take reasonable
steps to protect intelligent access information collected by them. In addition, TCA
and an auditor must destroy any information after 1 year unless it is required as
evidence in proceedings.

Proposed clause 72W requires service providers and TCA to prepare and make
publicly available a policy on the management of information. It also requires service
providers, TCA and auditors to take reasonable steps, at the request of an individual,
to provide information about information held in relation to the individual and to give
the individual access to personal information held about the individual. This does not
apply to information about non-compliance or tampering reports.

Proposed clause 72X requires service providers, TCA and auditors to make records
about intelligent access information they use or disclose within 5 business days of the
use or disclosure. In addition, a service provider is to keep a record of intelligent
access information it collects.

Proposed clause 72Y enables an individual to request a service provider, TCA or an
auditor to alter personal information held about the individual and requires
appropriate alterations to be made to ensure information is accurate, up-to-date,
complete and not misleading. A refusal of such a request is to be reviewed by TCA
(if the decision is made by a service provider or an auditor) or the RTA (if the
decision is made by TCA). The reviewing body may direct information to be altered.

Division 5 General
Proposed clause 72Z provides for the application, to intelligent access information,
of a provision of the Workplace Surveillance Act 2005 which limits the purposes for
which surveillance records made at work can be used, while also providing for the
collection, use, storage and disclosure of that information in accordance with the
proposed Part.

Proposed clause 72ZA sets out the records that must be kept by TCA of transactions
with the RTA, service providers and auditors. It also requires auditors to keep and
retain records of their transactions with service providers and TCA.

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Road Transport (General) Amendment (Intelligent Access Program) Bill 2006
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Proposed clause 72ZB enables auditors to carry out intelligent access audits and
requires service providers to give auditors access to relevant records kept under the
proposed Part.

Proposed clause 72ZC is an evidentiary provision that sets out matters about which
prima facie evidence may be given in any proceedings by way of a certificate issued
by the RTA. Those matters include evidence about intelligent access conditions,
operators of vehicles, malfunctions and non-compliance reports.

Proposed clause 72ZD is an evidentiary provision that enables prima facie evidence
about the intelligent access map, and the certification and appointment of service
providers and auditors, to be given in any proceedings by way of a certificate issued
by TCA.

Proposed clause 72ZE sets out evidentiary presumptions that are to apply (unless
evidence sufficient to raise doubt about them is adduced) in relation to the intelligent
access map, the operation of equipment and software in an intelligent access system,
the position of a vehicle and the operation of an intelligent access system.

Proposed clause 72ZF makes non-compliance reports and tampering reports
admissible in evidence and prima facie evidence of the facts stated in them and
establishes a presumption that they contain a correct report of information generated
and recorded by the intelligent access system concerned.

Schedule 2 [9] inserts a definition.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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