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TASMANIA
__________
MONETARY PENALTIES ENFORCEMENT
(CONSEQUENTIAL AMENDMENTS) BILL (No. 2)
2008
__________
CONTENTS
1. Short title
2. Commencement
3. Consequential Amendments
Schedule 1 Consequential Amendments
[Bill 38]-IV
2
MONETARY PENALTIES ENFORCEMENT
(CONSEQUENTIAL AMENDMENTS) BILL (No. 2)
2008
(Brought in by the Minister for Justice, the Honourable David
Edward Llewellyn)
A BILL FOR
An Act to amend the Monetary Penalties Enforcement Act
2005, the Local Government (Highways) Act 1982 and the
Traffic Act 1925
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Monetary Penalties
Enforcement (Consequential Amendments) Act
(No. 2) 2008.
2. Commencement
This Act is taken to have commenced on
28 April 2008.
3. Consequential Amendments
The legislation specified in Schedule 1 is
amended as specified in that Schedule.
[Bill 38] 3
Monetary Penalties Enforcement (Consequential Amendments)
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SCHEDULE 1 CONSEQUENTIAL AMENDMENTS
Section 3
Local Government (Highways) Act 1982
1. Section 94 is amended as follows:
(a) by omitting the definition of "owner"
from subsection (1) and substituting the
following definition:
"monetary penalty" means a
monetary penalty within the
meaning of the Monetary
Penalties Enforcement Act 2005;
(b) by omitting the definition of "vehicle"
from subsection (1) and substituting the
following definitions:
"registered operator" means a
registered operator within the
meaning of the Traffic Act 1925;
"vehicle" means a vehicle within the
meaning of the Vehicle and
Traffic Act 1999;
(c) by omitting from subsection (2) "owner"
twice occurring and substituting
"registered operator".
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2. After section 94, the following section is inserted
in Part VII:
94A. Proceedings in relation to offences under this
Part
(1) This section applies to an offence under
this Part.
(2) Subject to this section, where an offence
to which this section applies occurs in
relation to a vehicle, the person who, at
the time the offence occurred, was the
registered operator of the vehicle is, by
virtue of this section, guilty of the
offence as if he or she were the person
driving or in charge of the vehicle at that
time.
(3) A person is not guilty of an offence
under subsection (2) if he or she
establishes that he or she was not driving
or in charge of the vehicle at the time of
the occurrence of the offence.
(4) If a registered operator who has been
served with an infringement notice under
section 100 wishes to establish that he or
she was not driving or in charge of the
vehicle at the time of the occurrence of
the offence, he or she must
(a) lodge with the corporation a
notice of election to have the
matter heard in court; or
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Monetary Penalties Enforcement (Consequential Amendments)
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(b) provide a statutory declaration to
the corporation stating that at the
time of the offence
(i) the vehicle was being
driven by some other
person without his or her
knowledge or consent; or
(ii) the vehicle was in the
charge of another person
and stating the name of
that person; or
(iii) the person had completed
as transferor an
application for the
transfer of the registration
and stating the name of
the transferee.
(5) A statutory declaration provided to the
corporation under subsection (4) is taken
to be an application for withdrawal of an
infringement notice under section 24 of
the Monetary Penalties Enforcement Act
2005.
(6) A person is not entitled to rely on a
defence as referred to in subsection (3)
unless he or she gives, within 21 days of
the service on him or her of a complaint
and summons relating to the offence, to
the clerk of the court specified in the
summons, written notice of his or her
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intention to rely on that defence, together
with a statutory declaration in accordance
with subsection (4)(b).
(7) Proceedings must not be heard in relation
to an offence to which this section
applies unless the defendant referred to
in the complaint and summons relating to
the offence was, at the time of the service
of the complaint and summons on him or
her, notified in writing of the provisions
of this section.
(8) A complaint and summons to which this
section relates is to contain an address at
which a notice under subsection (6) may
be lodged.
(9) Where there are 2 registered operators of
a vehicle
(a) a prosecution for an offence to
which this section applies may be
brought against one or both of
them; and
(b) if the court is satisfied that such
an offence has been committed
and a defence is not established
under subsection (3), the
defendants, or any one of them
who does not establish such a
defence, may be found guilty of
the offence.
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(10) Where a monetary penalty is imposed on
2 registered operators of a vehicle who
have been found guilty, or who have
been taken to have been convicted under
section 20 of the Monetary Penalties
Enforcement Act 2005, of an offence to
which this section applies, the total of
any monetary penalty imposed in respect
of that offence is not to exceed the
maximum monetary penalty that could
have been imposed if only one of them
had been found guilty, or taken to have
been convicted, of that offence.
(11) Where
(a) a person on whom a complaint
and summons, relating to an
offence to which this section
applies has been served, gives to
the clerk of the court specified in
the summons written notice of his
or her intention to rely on the
defence under subsection (3)
together with a statutory
declaration stating that the
vehicle was in the charge of
another person and stating the
name of that person; and
(b) proceedings in respect of that
offence are taken against the
person named in the statutory
declaration as being in charge of
the vehicle
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the statutory declaration is evidence that
the person named in the statutory
declaration as being in charge of the
vehicle was in charge of the vehicle at all
relevant times relating to the offence.
(12) Nothing in this section affects the
liability of the actual offender but, where
a monetary penalty has been imposed on
or recovered from any person in relation
to an offence to which this section
applies, a further monetary penalty must
not be imposed on or recovered from any
other person in relation to the offence.
3. Section 97 is amended as follows:
(a) by omitting paragraph (d) from
subsection (6);
(b) by omitting from subsection (10) "an
owner" and substituting "a registered
operator";
(c) by omitting from subsection (10)
"owner's" and substituting "registered
operator's";
(d) by omitting from subsection (10)
"owner" second occurring and
substituting "registered operator";
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(e) by omitting from subsection (10)(b)
"owner" and substituting "registered
operator";
(f) by omitting from subsection (11)(c)
"owner" twice occurring and substituting
"registered operator".
4. Section 98(3) is amended by omitting paragraph
(a).
5. Section 99(11) is amended by omitting
paragraph (a).
6. Section 100 is amended by omitting subsection
(1) and substituting the following subsection:
(1) A parking attendant may serve an
infringement notice on the registered
operator of a vehicle if of the opinion
that the vehicle has been used in the
commission of an offence under
section 97, 98 or 99.
7. Section 103(1) is amended by omitting "owner"
and substituting "registered operator".
8. Section 106(1) is amended as follows:
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(a) by omitting from paragraph (a) "owner"
and substituting "registered operator";
(b) by omitting from paragraph (d) "owner"
and substituting "registered operator".
Monetary Penalties Enforcement Act 2005
1. Section 3 is amended by omitting "electing to
have" from paragraph (c) of the definition of
"infringement notice" and substituting "having".
Traffic Act 1925
1. Section 43GC is repealed and the following
section is substituted:
43GC. Suspension of registration on non-
compliance with notice of demand
(1) In this section
"non-complying registered
operator" means a body
corporate that has
(a) been taken to have been
convicted in accordance
with section 20 of the
Monetary Penalties
Enforcement Act 2005 of
an offence under
section 43G(3) in respect
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of non-compliance with a
notice of demand; or
(b) been convicted of that
offence by a court.
(2) If a non-complying registered operator is
convicted, or taken to have been
convicted, of an offence, then, by that
conviction, the registration of the vehicle
specified in the notice of demand is
suspended for a period of 14 days
starting on the date specified in a notice
of suspension served on the registered
operator of the vehicle by the Registrar
of Motor Vehicles.
(3) If
(a) in the normal course of events,
the period of registration of the
vehicle referred to in
subsection (2) would end, and
therefore would need to be
renewed, within the 14-day
period specified in the notice of
suspension
(i) the registration of that
vehicle is suspended for
that part of that 14-day
period during which the
registration continues; and
(ii) the registration of that
vehicle may not be
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renewed until that 14-day
period has ended; or
(b) the vehicle is not registered, that
vehicle may not be registered, or
the registration of that vehicle
may not be renewed, until that
14-day period has ended.
(4) The penalties imposed by subsection (2)
in respect of an offence under
section 43G(3) are in addition to any
other penalty imposed under this Act in
respect of that offence.
Government Printer, Tasmania 13