Northern Territory Explanatory Statements

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TRANSPORT LEGISLATION (DEMERIT POINTS) AMENDMENT BILL 2007





TRANSPORT LEGISLATION (DEMERIT POINTS) AMENDMENT BILL 2007
SERIAL NO. 106


LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY


MINISTER FOR INFRASTRUCTURE AND TRANSPORT


EXPLANATORY STATEMENT - This Statement has been amended - see Amendment Schedule at bottom


GENERAL OUTLINE

This Bill amends the Motor Vehicles Act, Traffic Act and Traffic Regulations.

The purpose of this Bill is to implement the Northern Territory (NT) Demerit Points Scheme (DPS). It assigns demerit points to certain traffic offences and provides the framework for the administration of the DPS. It requires the Registrar of Motor Vehicles (the Registrar) to:
· Record demerit points incurred by drivers in a demerit points register;
· Take action against a person’s driver licence, or right to drive, or right to obtain or renew a licence, when the person accrues excessive points; and
· Apply demerit points suspension separate to other driving disqualifications.

The Bill provides for review of demerit points records. It makes supporting amendments to allow for the withdrawal of infringement notices after the time to pay; and to discourage the avoidance of points as follows:
· Increases body corporate infringement penalties for camera detected demerit points offences to five times the penalty applying to a natural person; and
· Makes it an offence for a body corporate to fail more than twice within 3 years to identify a driver, in respect of infringement notices for camera detected demerit points offences.


NOTES ON CLAUSES

Clause 1. Short Title

The Bill when passed will be cited as the Transport Legislation (Demerit Points) Amendment Act 2007.

Clause 2. Commencement

The Act will commence on 1 September 2007.



Clause 3. Act amended

The next provisions amend the Motor Vehicles Act.

Clause 4. New Part III

This inserts a new Part under the Motor Vehicles Act headed Demerit Points Scheme. The following new sections are inserted:

Section 26. Interpretation. Specifies that in new Part III:

(A) “another jurisdiction” means a State or another Territory of the Commonwealth (of Australia).

(B) “demerit points” means the points incurred by a person who commits a demerit points offence; or the points incurred under a law of another jurisdiction by a person who commits a traffic offence in the other jurisdiction.

(C) “demerit points offence” means an offence specified in the relevant schedule to the Traffic Regulations for which demerit points are prescribed; or a traffic offence committed in another jurisdiction, that attracts demerit points under the law of that jurisdiction.

(D) “Fines Recovery Unit” has the meaning in the Fines and Penalties (Recovery) Act.

(E) “good driving period” means the period for which an undertaking to be of good driving behaviour is effective.

(F) “licence” means a licence or permit to drive a motor vehicle, including a learner licence; and, for a visiting driver – the right to drive in the NT.

(G) “licensing authority”, of another jurisdiction, means the Agency or office of the other jurisdiction responsible for administration of the scheme for licensing of drivers in that jurisdiction.

(H) “suspension” includes disqualification from holding or obtaining a licence.

(I) “suspension notice” means a notice issued when a person becomes liable to suspension because of demerit points incurred by the person.

(J) “suspension period” means the period (or, if the suspension is interrupted, the total of 2 or more discrete periods) for which the suspension is effective.

(K) “suspension threshold” means the point at which a person becomes liable to suspension because of demerit points incurred by the person.

(L) “traffic offence” means: an offence under an Act of the Territory or another jurisdiction that regulates road use or use of road-related areas.

(M) “visiting driver” means a person who is not a resident of the NT but who is entitled to drive in the NT under section 32 of the Traffic Act (who is driving validly under a licence of another jurisdiction or country).

Section 27. Minister may give directions. Specifies that the Minister may give directions to the Registrar in relation to the general administration of the demerit points scheme. This provision does not authorise directions that relate to the impact of the scheme on a particular person.

Section 28. Active demerit points. Specifies that in new Part III, demerit points are classified as “active demerit points” if they are capable of being taken into account as the basis of a suspension notice.

Additionally, specifies that demerit points cease to be active if they are taken into account as the basis of a suspension notice, or, they were incurred to long ago to be taken into account.

Section 29. Demerit points only to natural persons. Specifies that demerit points can only be incurred by natural persons.

Section 30. When demerit points are incurred. Provides that points are incurred on the date the demerit points offence was committed.

Section 31. Demerit points register. Requires the Registrar to maintain a register of demerit points. The register is to be a record of demerit points incurred in the NT, and of certain demerit points incurred by residents of the NT when interstate.

Section 32. Demerit points for offence committed in the Territory. Requires the Registrar to record against a person the appropriate number of demerit points for a demerit points offence committed in the NT if:

(A) The person is found guilty of the offence (and the time for appeal has passed and any appeal is determined, withdrawn or discontinued); or
(B) The person is served with an infringement notice for the offence and:

(i) The notice is paid in full or part; or (ii) The Fines Recovery Unit enters into a scheme with the person allowing further time to pay, or payment by instalments; or

(iii) The period for payment expires without the person electing to have the matter heard in court.

Section 33. Demerit points incurred in another jurisdiction. Requires the Registrar to record in the register the demerit points incurred by a resident of the NT when interstate – if the Registrar has been advised of the demerit points by the interstate licensing authority, and the offence they relate to corresponds to an NT demerit points offence.

These demerit points must not include points incurred before the commencement of the demerit points legislation.

Section 33A. Recording demerit points from other jurisdiction for person taking up residence in the NT. Requires the Registrar to record against a person who takes up residency in the NT and applies for an NT licence, the person’s active demerit points from the person’s former jurisdiction.


Transferred demerit points must not include points incurred before the commencement of the demerit points legislation, or points for a demerit points offence already recorded in the register.

The transferred demerit points are recorded for the dates they were incurred, and may include points for offences not recognised as demerit points offences in the NT.

Section 33B. When is suspension threshold reached? This section provides that a person becomes liable to suspension because of demerit points when the person accrues 12 or more demerit points within a period of 3 years or less. Learners, provisionals and visiting drivers are also liable to suspension when they accrue 5 or more demerit points within 12 months or less.

When demerit points are entered against a person’s name in the Register, a computer check will be carried out to determine whether the aggregate active demerit points incurred by the person over any relevant period result in the suspension threshold being reached.

Section 33C. Suspension notice issued when suspension threshold reached. Requires the Registrar to serve on a person a notice of suspension of licence, or of right to drive, or of right to obtain or renew a licence, when the suspension threshold is reached.

Additionally, this section specifies the information that must appear in a notice of suspension as follows:

(A) The date of the notice;
(B) The date on which the suspension is to take effect (the “effective date”);

(C) Details of the person’s licence (if any);

(D) Particulars of the relevant offences, including the date of each and its demerit points;

(E) The period for which the licence, or right to drive, or right to obtain or renew a licence, is suspended;

(F) Details of the person’s right to elect to begin (and complete) the suspension earlier than the notice states;

(G) Details of the person’s right (if eligible) to undertake to continue driving under good driving behaviour conditions, and the consequences of exercising or failing to exercise that right.

(H) Further information as prescribed.

Additionally, this section provides that the effective date is 28 days after the date of the notice, unless the person elects an early start.

The notice may be served by ordinary post to the person’s postal address (including a Post Office Box) last notified to the Registrar, the NT Police Force or the Fines Recovery Unit by the person. By the Interpretation Act, service is deemed to have occurred when the notice would have been delivered in the ordinary course of post.

Personal service is also permitted if a person does not live in an area serviced by Australia Post.

Section 33D. Effect of suspension. Provides that the suspension notice has the following effect:

(A) For an NT licence holder, the licence is suspended;

(B) For a visiting driver, the person’s right to drive in the NT is suspended;

(C) For an unlicensed person (including a person whose NT licence expires), the person’s ability to obtain or renew a licence is suspended.

Section 33E. Suspension period. This section specifies that when a suspension notice is issued, demerit points must be taken into account for the notice if they were incurred within the relevant period and they were recorded in the register as active points on the date of issue of the notice; a suspension period is fixed as follows:

(A) For a suspension threshold of 5 demerit points within 12 months or less:

(i) If 5 to 8 points on the notice – 3 months; (ii) If 9 to 12 points on the notice – 4 months;

(iii) If more than 12 points on the notice – 5 months.

(B) For a suspension threshold of 12 demerit points within 3 years or less:

(i) If 12 to 15 demerit points on the notice – 3 months;
(ii) If 16 to 19 demerit points on the notice – 4 months;

(iii) If more than 19 demerit points on the notice – 5 months.

Section 33F. Early start to suspension period. Allows a person served with a suspension notice, to elect to begin a suspension period earlier than the effective date in the notice, by completing the early start form and lodging it in person at a Motor Vehicle Registry (MVR) office or remote police station within 21 days after the date of the notice.

Section 33G. Undertaking to be of good driving behaviour. Permits a person served with a notice of suspension, to undertake (if eligible), as an alternative to suspension, to be of good driving behaviour for a total of 12 months, starting the day after election, by completing the good driving behaviour form, and submitting it in person at an MVR outlet or remote police station within 21 days after the date of the notice.

Additionally, specifies that good driving behaviour does not run during suspension or disqualification under another law, and whatever part of good driving behaviour has not been served begins immediately the suspension or disqualification ends.

Section 33H. Eligibility to undertake good driving behaviour. Provides that a person who holds an NT licence, or becomes a holder before the suspension period would run, is eligible to undertake to be of good driving behaviour.

Additionally, specifies that a person is not eligible to undertake good driving behaviour if the person is subject to a suspension notice that has been issued for breach of good driving behaviour.

Section 33J. Person may apply for extension of time for undertaking. Permits a person to apply to the Registrar for an extension of time to undertake good driving behaviour.

Additionally, specifies that the Registrar may allow the additional time only if the Registrar is satisfied that the person has not received the suspension notice in sufficient time to give the undertaking or the circumstances are exceptional and warrant the allowance.

Additionally, specifies that the person can make only one application. This does not prevent the Registrar from allowing a further extension of time to elect if satisfied that the circumstances warrant it.

Section 33K. Person may apply to give undertaking by other means. Allows a person to apply to the Registrar for dispensation from the requirement to lodge in person the undertaking to be of good driving behaviour.

Additionally, specifies that the Registrar may allow the undertaking to be lodged by other means only if the Registrar is satisfied as to the identity of the person and that in the circumstances it would be unduly onerous to require personal attendance.

33L. Breach of undertaking. Requires the Registrar to serve a further notice of suspension on a person if the person incurs 2 or more demerit points during his or her good driving behaviour period.

Additionally, this section specifies that this suspension period is double the suspension period that would have applied had the person not undertaken good driving behaviour.

Section 33M. Advising other jurisdiction of offences committed in the Territory.

(A) Requires the Registrar to advise the licensing authority of another jurisdiction of a demerit points offence committed in the NT (and the applicable points) by a person resident in the other jurisdiction.

(B) Additionally, the Registrar may advise the licensing authority of another jurisdiction of a traffic offence committed in the NT by a person resident in the other jurisdiction, despite that the offence is not a demerit points offence in the NT.

Section 33N. When Registrar advises other jurisdiction. Requires the Registrar to advise the licensing authority in the above provision only after a demerit points offence has been settled in the same way as in section 32.

Section 33P. Registrar to provide details of active demerit points. Requires the Registrar to do certain things as follows if the licensing authority of another jurisdiction advises that an NT licence holder has applied for a licence in the other jurisdiction:

(A) Provide the licensing authority with details of the person’s active demerit points;

(B) Advise the licensing authority of any demerit points suspension or good driving period that applies to the person.

Section 33Q. Demerit points no longer active once taken into account for suspension notice or breach of undertaking. Specifies that demerit points for a particular offence can be taken into account once only as the basis of a suspension notice whether the notice is for reaching a suspension threshold, for breaching good driving behaviour, or from another jurisdiction.

Additionally, specifies that if the suspension notice is withdrawn, the points may be taken into account as the basis of a later suspension notice.

Section 33R. Demerit points incurred but not taken into account for suspension notice. Provides that demerit points that were not in the register before the date of a suspension notice, whether or not incurred before notice date, can be taken into account as the basis of a later suspension notice.

Section 33S. Demerit points deleted from register.

(A) Requires the Registrar to delete an entry of demerit points from the register if satisfied that that the entry was made in error, or the demerit points relate to on offence that is later appealed; and allows the Registrar to make further consequential adjustments to ensure the records are correct.

(B) Requires the Registrar to delete demerit points from the register if the corresponding demerit points offence is annulled under the Fines and Penalties (Recovery) Act.

Section 33T. Withdrawal of suspension notice. Requires the Registrar to withdraw a suspension notice if its issue was caused by demerit points that must be deleted under the above provision.

Additionally, this section allows the Registrar to re-issue an appropriate suspension notice if it would in any case have been issued without taking into account the deleted demerit points.

Section 33U. Releasing information from register. Allows the Registrar to retain records of demerit points that are no longer active, only for statistical purposes. Demerit points information must not be published except for statistical purposes where it does not identify any particular person.

Section 33V. Appeal against decision of Registrar. Specifies that suspension of licence, or of right to drive, or of right to obtain or renew a licence, under the demerit points scheme set out in new Part III occurs by force of the legislation, and is not appealable or reviewable in any court.

Additionally, provides that in respect of any decision of the Registrar under new Part III, appeal is to the Local Court.

Section 33W. Court not take demerit points into account. This section requires that a court must not take into account that demerit points may be incurred by a person when sentencing the person for a traffic offence.

Section 33X. Demerit points not affected by licence suspension under another law. Specifies that demerit points suspension of licence, or of right to drive, or of right to obtain or renew a licence, is additional to any other period of licence suspension, or disqualification from driving, under a law in force in the Territory.

Additionally, this section provides that points recorded in the register are not affected by a period of licence suspension or disqualification imposed by a court in Australia or any other Territory law.

Additionally, specifies that if different periods of suspension or disqualification apply to a person, the order in which the periods must be served is as follows:

(i) Firstly, suspension or disqualification by another law, except fine default under the Fines and Penalties (Recovery) Act;

(ii) Secondly, demerit points suspension concurrently with any fine default suspension.

Additionally, provides that demerit points suspension does not run during suspension or disqualification under another law, and whatever part of demerit points suspension has not been served begins immediately the suspension or disqualification ends.

Section 33Y. Immunity from liability. Specifies that no person is civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise or purported exercise of a power, or the performance or purported performance of a function, under new Part III (Demerit Points Scheme).

Section 33Z. Offence by body corporate. Makes it an offence for a body corporate to fail more than twice within 3 years to identify a driver of vehicle, under the control of the body corporate, involved in the commission of a camera detected demerit points offence. The maximum penalty is 20 penalty units.

This section also provides a statutory defence against a prosecution for this offence, as follows:

(A) That the body corporate had taken all reasonable steps to ensure it would be able to identify the driver of a vehicle under its control should a demerit points offence be committed; and

(B) It failed to identify the driver because of exceptional circumstances.

Clause 5. Amendment of section 138 (Regulations)

This amends section 138 of the Motor Vehicles Act which provides regulation-making powers of the Administrator.

It inserts a new power of the Administrator to prescribe matters for and in relation to the demerit points scheme set out in Part III.

Clause 6. Act amended

The next provisions amend the Traffic Act.

Clause 7. Amendment of section 3 (Interpretation)

Section 3 is amended to include the following meanings:

(A) “demerit points” means the points incurred by a natural person in relation to a demerit points offence;

(B) “demerit points offence” means an offence specified in the relevant schedule to the Traffic Regulations for which demerit points are prescribed.

Clause 8. Amendment of section 30A (Driving at dangerous speed)

This amends section 30A(1) which makes it an offence to drive a vehicle at a speed that is more than 45 km/h faster than the speed limit specified in the Regulations.

For drafting accuracy, the amendment replaces the above underlined words with the following underlined words:

“A person must not drive a vehicle at a speed that is more than 45 km/h faster than the prescribed speed limit for the length of road.”

Clause 9. Amendment of section 33B (Person may be cautioned)

This amends section 33B of the Traffic Act which permits a member of the Police Force to caution a person, as an alternative to charging the person with the offence of driving unlicensed, or driving an unregistered vehicle, in cases where the person’s driver licence, or the vehicle’s registration, is suspended for fine default. Caution may include permitting the person to continue to drive to a nominated place.

The amendment extends this ability of Police, to cases where a person is subject to demerit points suspension.

Additionally, the amendment permits the Registrar to caution a person, including permitting the person to continue to drive to a nominated place, in cases where the person is subject to either a demerit points suspension, or a fine default suspension.

Clause 10. New section 43AA

This is a new section which specifies that a body corporate, that has control of vehicle (whether as owner, hirer or lessee) involved in the commission of a camera detected demerit points offence, is liable to an infringement penalty 5 times the penalty for a natural person – if the body corporate does not identify a natural person as the driver.

Clause 11. New section 53A

This is a new section which provides new regulation-making powers of the Administrator; and, a new power of the Minister to declare that additional demerit points will apply during a certain period.

It inserts new powers of the Administrator to prescribe that a specified offence under the Traffic Act or another Act regulating road use or the use of road-related areas is a demerit points offence, and the points it attracts.

It inserts a new power of the Minister to declare, by notice in the Gazette and published in a newspaper circulating throughout the NT, double demerit points will apply to existing demerit points offences during a specified period.

Clause 12. Regulations amended

The next provisions amend the Traffic Regulations.

Clause 13. Amendment of regulation 42 (Particulars to be shown on traffic infringement notice)

This amends regulation 42 which specifies that certain statements must be shown on a traffic infringement notice.

The amendment extends the statement that relates to the effect of paying the penalty, by the underlined words:

“…if the amount of the penalty shown on the notice is paid at an appropriate place within the time specified in the notice, no further action other than allocation of demerit points for an appropriate offence will be taken…”

Clause 14. Amendment of regulation 43 (Withdrawal of infringement notice)

This amends regulation 43 which specifies that a traffic infringement notice may be withdrawn within 28 days after the notice is served.

The amendment allows a traffic infringement notice to be withdrawn at a later time if the circumstances are exceptional, and the person who may withdraw the notice is satisfied that the person to whom the notice was issued was not the offender.

Additionally, the amendment allows a courtesy letter to be withdrawn, if the originating infringement notice is withdrawn, despite that the due date for payment specified in the courtesy letter may have passed. Courtesy letters are issued under the Fines and Penalties (Recovery) Act.

Clause 15. Amendment of regulation 45 (Payment of penalty within specified period)

This amends regulation 45 which specifies that no further proceedings for prosecution can be taken if the penalty is paid (and the infringement notice not withdrawn).

The amendment inserts that demerit points can be allocated in relation to a demerit points offence, despite that the offence is expiated.

Clause 16. New Part 3A

This inserts a new Part under the Traffic Regulations headed Demerit Points. The following new regulation is inserted:


Regulation 54A. Demerit points for certain offences. Specifies that the demerit points for an offence are specified in the table in the relevant schedule.

Clause 17. Schedule

This inserts the table specifying the demerit points offences and the points they attract.

2007


COMMITTEE STAGE AMENDMENT SCHEDULE


TRANSPORT LEGISLATION (DEMERIT POINTS) BILL 2007


(Serial 106)


LEGISLATIVE ASSEMBLY OF THE


NORTHERN TERRITORY


MINISTER FOR INFRASTRUCTURE AND TRANSPORT


EXPLANATORY STATEMENT





This Explanatory Statement amends the Explanatory Statement previously issued in respect of the Schedule of Amendments for the Transport Legislation (Demerit Points) Amendment Bill 2007. A new 22.1 has been inserted to reflect a reference dealt with in the Schedule.


GENERAL OUTLINE


The amendment schedule amends the Transport Legislation (Demerit Points) Bill 2007 as tabled.

Amendment is made in respect of clause 4, section 33B of the Bill, which deals with the point at which a person becomes liable to suspension because of demerit points incurred by the person (the suspension threshold).

The amendment clarifies that the suspension threshold for interstate full licence holders is 12 points within 3 years, as applies nationwide. This upholds the principle of mutual recognition. The suspension thresholds for Territory drivers, all learners and provisionals, and international drivers, remain unchanged.

Additionally, the amendment schedule defeats the existing Schedule 1A in the tabled Bill and replaces it with the new schedule.


The amendment amalgamates the Demerit Points Schedule (1A) with the existing Traffic Regulations Traffic Infringement Schedule (1). This amalgamation will provide one list of all Traffic Infringement Notice Offences and includes reference to the offence provision and where appropriate the associated demerit points thus improving the transparency of the infringement system.





NOTES ON CLAUSES


CLAUSE 4

22.1 Proposed section 26

This amends section 26 of the Bill which inserts definitions into the Motor Vehicles Act. It amends the definition of “demerit points offences” by removing reference to Schedule 1A and substituting Schedule 1. This reflects the amalgamation of the Demerit Points Schedule and the existing Traffic Regulations Traffic Infringement Schedule, dealt with in 22.4


22.2 Proposed section 33B(2)

This omits subsection 33B(2) of the Bill, which amends the Motor Vehicles Act by including the point at which a visiting driver becomes liable to suspension because of demerit points incurred by the driver (the suspension threshold).

It substitutes new subsection 33B(2) and subsection 33B(3), which clarify that the suspension threshold for interstate full licence holders is 12 points within 3 years as applies nationwide. This upholds the principle of mutual recognition of licence sanctions across Australian jurisdictions. The suspension thresholds for Territory drivers, all learners and provisionals, and international drivers, remain unchanged.

CLAUSE 7

22.3 Definition “demerit points offence”


This amends Clause 7 of the Bill which inserts section 3(5) into the Traffic Act. It amends the definition by removing reference to Schedule 1A and substituting Schedule 1. This reflects the amalgamation of the Demerit Points Schedule and the existing Traffic Regulations Traffic Infringement Schedule, dealt with in 22.4.


CLAUSE 17


This invites defeat of the existing clause 17 in the tabled Transport Legislation (Demerit Points) Bill 2007 (Demerits Points Schedule 1A) to allow the replacement with the new amalgamated Schedule 1.


NEW CLAUSE 17 SCHEDULE 1

22.4 Repeal and substitution of Schedule 1
This provides for the Bill to be amended by inserting a replacement clause 17 which repeals and substitutes Schedule 1A with new Schedule 1. The new Schedule 1 incorporates the information formerly supplied by the existing Schedule 1 in the Traffic Regulations and also the information that was to be supplied in Schedule 1A. It is an amalgamation of information previously provided and improves the transparency of the Demerit Points Schem

 

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