ROAD LEGISLATION (PROJECTS AND ROAD SAFETY) ACT 2006 (NO 81 OF 2006) - SECT 24 New Part 6AA inserted in Road Safety Act 1986

ROAD LEGISLATION (PROJECTS AND ROAD SAFETY) ACT 2006 (NO 81 OF 2006) - SECT 24

After Part 6 of the Road Safety Act 1986 insert —

'PART 6AA—OPERATOR ONUS

        84BA.     Purpose of this Part

The purpose of this Part is to establish an "operator onus" system for certain offences arising out of the operation of motor vehicles or trailers based on the principle that, if the identity of the driver or person in charge is not established at the time the offence is detected, the person last known to have possession or control of the vehicle or trailer should generally be liable for the offence unless that person can establish that they were not responsible for the vehicle or trailer at the time of the offence and provide information sufficient to identify and locate who was.

        84BB.     Definitions

In this Part—

"corresponding body" means a body outside Victoria that has functions under a corresponding law that correspond with any of the functions of the Corporation under Division 2 of Part 2;

"corresponding law" means a law of the Commonwealth or of another State or of a Territory that corresponds to Division 2 of Part 2;

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"effective" , in relation to an illegal user statement, a known user statement, a sold vehicle statement or an unknown user statement, means a statement that is, or is accepted by an enforcement official under section 84BE as, and has not ceased to be, an effective statement for the purposes of this Part;

"enforcement official" means—

        (a)     the informant in any proceeding commenced against the operator of a motor vehicle or trailer; or

        (b)     the issuing officer (within the meaning of the Infringements Act 2006 ) in relation to an infringement notice served on the operator of a motor vehicle or trailer; or

        (c)     the enforcement agency (within the meaning of the Infringements Act 2006 ) in relation to a penalty reminder notice served on the operator of a motor vehicle or trailer under Part 2 of that Act—

in relation to the driving, or being in charge, of the motor vehicle or trailer at the relevant time;

"illegal user statement" , in relation to an offence involving a motor vehicle or trailer, means a statement in writing made by a person to the effect that the person believes that at the time of the offence the motor vehicle or trailer was a stolen motor vehicle or trailer or that the number plates displayed on the motor vehicle or trailer were stolen and giving reasons for that belief;

"known user statement" , in relation to an offence involving a motor vehicle or trailer, means a statement in writing made by a person—

        (a)     to the effect that the person was not at the time of the offence driving, or had not at that time possession or control of, the motor vehicle or trailer or the motor vehicle to which the trailer was attached; and

        (b)     containing sufficient information to identify and locate the person who the person making the statement last knew to have, before the offence, possession or control of the motor vehicle or trailer or of the motor vehicle to which the trailer was attached; and

        (c)     giving reasons for any matter stated in response to the requirement imposed by paragraph (b);

"nomination rejection statement" means a statement in writing made by a person nominated in a known user statement or a sold vehicle statement as being the responsible person in relation to a motor vehicle or trailer—

        (a)     to the effect—

              (i)     if nominated in a known user statement, that the person had not had possession or control of the motor vehicle or trailer, as the case requires, before the offence, as stated in the known user statement, and did not have possession or control of it at the time of the offence; and

              (ii)     if nominated in a sold vehicle statement, that the motor vehicle or trailer, as the case requires, had not been sold or disposed of to the person, and that no interest in it had otherwise vested in the person, as stated in the sold vehicle statement; and

        (b)     giving reasons for any matter stated by the person;

"operator" , in relation to a motor vehicle or trailer at the time of an offence, means each of the following—

        (a)     the registered operator of the motor vehicle or trailer at that time or the person recorded at that time on a register of vehicles maintained under a corresponding law as the person responsible for the motor vehicle or trailer;

        (b)     if the Corporation under the regulations, or a corresponding body under a corresponding law, has received notice of transfer of registration of the motor vehicle or trailer, the person whose name is disclosed in the records kept by the Corporation or the corresponding body (as the case requires) as being responsible for the motor vehicle or trailer at that time;

        (c)     if the motor vehicle or trailer is not registered under this Act or a corresponding law, the person whose name is disclosed in the records kept by the Corporation or the corresponding body as being responsible for the motor vehicle or trailer at that time;

        (d)     if the motor vehicle or trailer displays a number plate—

              (i)     the person who, at the time at which the registration number borne by that number plate was last assigned by the Corporation or a corresponding body, was the registered operator of, or (if assigned by a corresponding body) the person recorded on a register of vehicles maintained under the corresponding law as the person responsible for, the motor vehicle or trailer to which that registration number was assigned, whether or not that motor vehicle or trailer is the same as the motor vehicle or trailer involved in the offence; or

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              (ii)     the person whose name is disclosed in the records kept by the Corporation or a corresponding body as being entitled, or last entitled, at that time to use or possess that number plate;

        (e)     if the motor vehicle or trailer displays a general identification mark by means of a special identification plate issued by the Corporation under the regulations or by a corresponding body under a corresponding law, the person to whom the mark is assigned at that time;

"responsible person" , in relation to a motor vehicle or trailer at the time of an offence, means each of the following—

        (a)     the operator of the motor vehicle or trailer;

        (b)     in the case of a trailer, the operator of the motor vehicle to which the trailer was attached at that time;

        (c)     the person nominated in an effective known user statement or an effective sold vehicle statement;

        (d)     in the case of an offence against section 73(1) of the Melbourne City Link Act 1995 , without limiting paragraphs (a), (b) and (c), the person nominated as the driver of the motor vehicle at that time in a statement or declaration supplied in accordance with section 72(3) of that Act;

"sold vehicle statement" , in relation to an offence involving a motor vehicle or trailer, means a statement in writing made by a person—

        (a)     to the effect that—

              (i)     the person had sold or otherwise disposed of the motor vehicle or trailer before the time of the offence or that any interest in the motor vehicle or trailer had otherwise ceased to be vested in the person before that time; and

              (ii)     the person was not at that time driving, or had not at that time possession or control of, the motor vehicle or trailer or the motor vehicle to which the trailer was attached; and

        (b)     containing sufficient information to identify and locate the person to whom the motor vehicle or trailer was sold or disposed of, or in whom an interest in the motor vehicle or trailer was otherwise vested, and the date and, if relevant, the time of the sale, disposal or vesting;

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"unknown user statement" , in relation to an offence involving a motor vehicle or trailer, means a statement in writing made by a person to the effect that the person—

        (a)     was not at the time of the offence driving, or had not at that time possession or control of, the motor vehicle or trailer or the motor vehicle to which the trailer was attached; and

        (b)     does not know and could not with reasonable diligence ascertain the identity of the person who was at that time driving or, had at that time possession or control of, the motor vehicle or trailer or the motor vehicle to which the trailer was attached and giving reasons for not knowing and not being able to ascertain the identity of that person.

        84BC.     Operator onus offences

    (1)     If the Act or legislative instrument that creates an offence that may be committed by the driver or person in charge of a motor vehicle or trailer, or any other Act or legislative instrument, expressly states that the offence is an operator onus offence for the purposes of this Part, then (except as otherwise provided by this Part) the person who at the time of the offence is the responsible person in relation to the motor vehicle or trailer is guilty of the offence as if that person were the driver or person in charge (as the case requires) of the motor vehicle or trailer at that time.

    (2)     Nothing in sub-section (1) affects the liability of the person actually driving, or in charge of, as the case requires, the motor vehicle or trailer at the time of the offence.

    (3)     The operator of a motor vehicle or trailer only ceases to be the responsible person in relation to the motor vehicle or trailer if another person is the responsible person in relation to that vehicle or trailer by force of section 84BE or 84BF.

    (4)     A person who by force of this section is guilty of an offence is liable to the same penalties and subject to the same consequences to which the person would have been liable and subject had the person been the driver, or in charge, as the case requires, of the motor vehicle or trailer at the time of the offence.

        84BD.     Effect of payment of penalty, etc.

    (1)     If by force of section 84BC more than one person may be guilty of an offence involving a motor vehicle or trailer and the full amount of any monetary penalty is paid (and not refunded under section 88(4)) and any other necessary consequence (including the recording of demerit points against the person) is suffered by any one of them in relation to the offence, no further penalty or consequence may be imposed on or recovered from that person or any other person in relation to the offence.

    (2)     Despite sub-section (1), the payment of a monetary penalty or the recording of demerit points in relation to an offence that is an operator onus offence by force of section 66—

        (a)     may be recorded for the purposes of a heavy vehicle registration suspension scheme within the meaning of section 89(7); and

        (b)     does not prevent the suspension of the registration of a heavy vehicle under that scheme.

        84BE.     Use of effective statement to avoid liability

    (1)     A person is not guilty of an offence by force of section 84BC if—

        (a)     within the prescribed period the person gives to an enforcement official—

              (i)     an illegal user statement; or

              (ii)     a known user statement; or

              (iii)     a sold vehicle statement; or

              (iv)     an unknown user statement; and

        (b)     the statement is an effective statement for the purposes of this Part.

    Note 1:     A statement may cease to be an effective statement under section 84BF.

    Note 2:     It is an offence to provide false or misleading information in a statement: see section 84BI.

    (2)     Information contained in a known user statement or a sold vehicle statement identifying a person is sufficient for the purposes of this Part if it contains—

        (a)     in the case of an individual, his or her full name and current home address and either his or her date of birth or the number of the licence or permit authorising him or her to drive and, if that licence or permit is issued by a corresponding Authority, the name of that Authority; and

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        (b)     in the case of a person other than an individual, its full name and current address and (where applicable) its Australian Business Number or Australian Company Number; and

        (c)     in any case, any other prescribed information.

    (3)     A statement containing all the information required by sub-section (2) is an effective statement for the purposes of this Part.

    (4)     In addition, an enforcement official may decide to accept a known user statement or a sold vehicle statement as an effective statement for the purposes of this Part even if it does not contain all the information required by sub-section (2) if the enforcement official is satisfied that it contains sufficient information to identify and locate the nominated person.

    (5)     An enforcement official may decide to accept an illegal user statement or an unknown user statement as an effective statement for the purposes of this Part if satisfied as to the matters stated in it.

    (6)     An enforcement official to whom a known user statement or sold vehicle statement (not containing all the information required by sub-section (2)) or an illegal user statement or an unknown user statement is given under sub-section (1) must, within the prescribed period, cause a notice to be served on the person who gave the statement stating whether or not the enforcement official has decided under sub-section (4) or (5) (as the case requires) to accept the statement as an effective statement for the purposes of this Part.

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    (7)     If sub-section (6) is not complied with in respect of a statement, the enforcement official must be taken to have decided to accept the statement as an effective statement for the purposes of this Part.

    (8)     A notice under sub-section (6) may be served by post addressed to the person at an authorised address (within the meaning of section 163A of the Infringements Act 2006 ).

    (9)     A notice under sub-section (6) served in accordance with sub-section (8) and returned undelivered to its sender is deemed to be served 14 days after the date specified in the notice as the date of the notice, despite it being returned to its sender as undelivered.

    (10)     Sub-section (9) has effect despite anything to the contrary in section 49(1) of the Interpretation of Legislation Act 1984 .

        84BF.     Cancellation of acceptance of statement

    (1)     An enforcement official may cancel the acceptance of a statement as an effective statement for the purposes of this Part (including a statement taken to have been accepted by force of section 84BE(7))—

        (a)     if in the case of a known user statement or a sold vehicle statement, the person nominated in the statement as being the responsible person gives to an enforcement official within the prescribed period a nomination rejection statement and the enforcement official is satisfied, having regard to the matters stated in the nomination rejection statement, that the nomination was incorrect; or

    Note:     It is an offence to provide false or misleading information in a statement: see section 84BI.

        (b)     if in the case of a statement not containing all the information required by section 84BE(2), the information contained in the statement proves not to be sufficient to identify or locate the nominated person; or

        (c)     in prescribed circumstances.

    (2)     If the acceptance of a statement as an effective statement is cancelled under sub-section (1), on that cancellation—

        (a)     the statement ceases to be an effective statement for the purposes of this Part; and

        (b)     the person who would, but for the statement, have continued to be the responsible person in relation to the motor vehicle or trailer (as the case requires) becomes again the responsible person.

        84BG.     Proceedings against nominated persons

    (1)     A proceeding against a person nominated in an effective known user statement or sold vehicle statement for an offence to which this Part applies may be commenced not later than 12 months after—

        (a)     the day on which the statement was given to the enforcement official; or

        (b)     if the statement again becomes an effective statement because of the cancellation under section 84BF(1) of the acceptance of a subsequent statement, the day on which the subsequent statement is cancelled.

    (2)     In a proceeding referred to in sub-section (1) the known user statement or sold vehicle statement is evidence and, in the absence of evidence to the contrary, proof of the matters stated in it.

        84BH.     Defences to operator onus offences

In a proceeding for an operator onus offence it is a defence to the charge for the defendant to prove any of the following—

        (a)     that the defendant had made an illegal user statement, a known user statement, a sold vehicle statement or an unknown user statement within the prescribed period and that the statement is, or ought to have been accepted by an enforcement official as, an effective statement for the purposes of this Part;

        (b)     that the acceptance as an effective statement for the purposes of this Part of an illegal user statement, known user statement, sold vehicle statement or unknown user statement made by the defendant ought not to have been cancelled under section 84BF(1);

        (c)     if the proceeding against the defendant is based on a nomination made in a known user statement or sold vehicle statement, that the defendant had made a nomination rejection statement and that an enforcement official ought to have been satisfied, having regard to the matters stated in the nomination rejection statement, that the nomination was incorrect;

        (d)     if the proceeding against the defendant is based on a nomination made in a statement or declaration supplied in accordance with section 72(3) of the Melbourne City Link Act 1995 , that the defendant was not the driver of the vehicle at the time of the offence.

        84BI.     Offence to provide false or misleading information

A person must not in a statement given under section 84BE(1) or 84BF(1)(a) to an enforcement official provide information that the person knows to be false or misleading in a material respect.

Penalty:     60 penalty units.'.