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ROAD TRANSPORT LEGISLATION AMENDMENT REGULATION 2010 (NO 3) (NO 28 OF 2010)
2010
Subordinate Law
SL2010—28
THE LEGISLATIVE ASSEMBLY FOR THE
AUSTRALIAN CAPITAL
TERRITORY
ROAD TRANSPORT LEGISLATION
AMENDMENT REGULATION 2010 (No
3)
EXPLANATORY
STATEMENT
Circulated by
Jon
Stanhope MLA
Minister for Transport
Overview
The primary purpose of this regulation is to provide for
the accreditation of heavy vehicle driver assessors. Part 7 of the Road
Transport (Driver Licensing) Regulation 2000 currently provides for the
accreditation of driving instructors. This part is amended to extend its
operation to heavy vehicle driver assessors. The opportunity is also taken to
make some minor amendments of road transport regulations.
Strict liability offences
The amendments (see clauses 18 and 22)
create several new strict liability offences. For offences to which strict
liability applies there is no requirement for the prosecution to establish that
the defendant had a particular state of mind (for example, intention, knowledge,
recklessness or negligence) when the actions or circumstances constituting the
offence or elements of the offence were done or otherwise occurred.
Strict liability offences engage the presumption of innocence under the Human Rights Act 2004. All strict liability offences are assessed by the Human Rights and Criminal Law Units in the Department of Justice and Community Safety. When assessing whether an offence is suitable to be a strict liability offence, the Department has regard to a number of criteria, including:
• whether the defendant was “put on notice” of a requirement to do an act, and that a failure to do so will result in the commission of an offence;
• whether the defendant can be reasonably expected, because of his or her admission to a particular profession or because the requirements of a regulatory regime to which he or she is subject to, to know of their legal obligations under that regime;
• whether the commission of the conduct constituting the offence is technical in nature, or whether the commission of the conduct is “morally blameworthy” or “repugnant”: see Wholesale Travel Group Inc v R [1991] 3 S.C.R. 154;
• whether the burden on the defendant to raise a mistake of fact defence is an evidential or legal one;
• whether requiring the prosecution to prove a subjective mental fault
element or higher level of fault would impose a difficult or impossible burden
on it, thereby undermining the legitimate regulatory objectives of the state;
and
• the severity of the penalty for the offence: a penalty of
imprisonment is very serious, and requires exceptional justification.
In Travel Group Inc a majority Court drew a distinction between
‘true crimes’ and regulatory offences. The Court observed the
earlier distinction it had drawn in R v City of Sault Ste. Marie
[1978] 2 S.C.R. 1299. In that case Dickson J (as he then was), writing on
behalf of a unanimous Court, recognised:
public welfare offences as a
distinct class. ... such offences, although enforced as penal laws through
the machinery of the criminal law, ‘are in substance of a civil nature and
might well be regarded as a branch of administrative law to which traditional
principles of criminal law have but limited application.’
Cory J, writing for the majority in Travel Group Inc, observed
that:
It has always been thought that there is a rational basis for
distinguishing between crimes and regulatory offences. Acts or actions are
criminal when they constitute conduct that is, in itself, so abhorrent to the
basic values of human society that it ought to be prohibited completely.
Murder, sexual assault, fraud, robbery and theft are all so repugnant to society
that they are universally recognized as crimes. At the same time, some
conduct is prohibited, not because it is inherently wrongful, but because
unregulated activity would result in dangerous conditions being imposed upon
members of society, especially those who are particularly
vulnerable.
The objective of regulatory legislation is to protect
the public or broad segments of the public (such as employees, consumers and
motorists, to name but a few) from the potentially adverse effects of otherwise
lawful activity. Regulatory legislation involves a shift of emphasis from
the protection of individual interests and the deterrence and punishment of acts
involving moral fault to the protection of public and societal interests.
While criminal offences are usually designed to condemn and punish past,
inherently wrongful conduct, regulatory measures are generally directed to the
prevention of future harm through the enforcement of minimum standards of
conduct and care.
It follows that regulatory offences and crimes
embody different concepts of fault. Since regulatory offences are directed
primarily not to conduct itself but to the consequences of conduct, conviction
of a regulatory offence may be thought to import a significantly lesser degree
of culpability than conviction of a true crime. The concept of fault in
regulatory offences is based upon a reasonable care standard and, as such, does
not imply moral blameworthiness in the same manner as criminal fault.
Conviction for breach of a regulatory offence suggests nothing more than that
the defendant has failed to meet a prescribed standard of care.
The Court
recognized that strict liability offences would be more readily justified when
applied to regulatory offences which do not imply the same degree of moral
blameworthiness as ‘true crimes’.
Having regard to the
matters considered above, it is considered that the strict liability offences in
the amending regulation impose reasonable and proportionate limitations on the
presumption of innocence in section 22 (1) of the of the Human Rights Act. The
offences are essentially of a regulatory nature and are directed at categories
of people who should know the legal obligations under which they practise. The
defence of mistake of fact is available to a defendant charged with a strict
liability offence. The defence only imposes an evidential burden, as opposed to
a legal or ‘persuasive’ burden, on the defendant: the defendant
need only present or point to evidence which suggests that there is a
‘reasonable possibility’ that he or she acted under a mistake of
fact (see the Criminal Code, section 58 (4) and (7)). If the defendant
discharges this onus, the burden is then put back on the prosecution to disprove
beyond reasonable doubt that the defendant did not act under a mistake of fact
(see the Criminal Code, section 56 (2)). The use of strict liability offences
will substantially assist in protecting the efficiency and integrity of the
regulatory regime under the Road Transport (Driver Licensing) Regulation
2000.
Part 1 Preliminary
Clause 1 Name of
Regulation
This clause is a formal provision and provides that the name
of the amending regulation is the Road Transport Legislation Amendment
Regulation 2010 (No 3).
Clause 2 Commencement
This
clause provides for the commencement of the regulation.
Clauses 55 to 57
make minor corrections to the Road Transport (Offences)
Regulation 2005. Together with clause 52 (which provides that part 5
amends the Offences Regulation), subclause (1) provides that they commence on
the day after the regulation is notified.
Part 4, which makes minor
amendments of the Road Transport (Mass, Dimensions and Loading)
Regulation 2010, commences on 1 July 2010 (see subclause (2)). This is
because it includes amendments consequent on the transfer to the Commonwealth of
full responsibility for administration and enforcement of trade measurement
matters from that date.
The remaining provisions (see subclause (3))
commence 2 months after the amending regulation is notified. This is to allow
for applications for accreditation by heavy vehicle driver assessors to be
processed before the relevant amendments commence.
Part 2 Road Transport (Driver Licensing) Regulation 2000
Clause
3 Legislation amended—pt 2
This clause provides that the part
amends the Road Transport (Driver Licensing) Regulation
2000.
Clause 4 Section 4, note 1
This clause makes a
consequential change to the note to reflect the addition of the new offences
created by clauses 18 and 22.
Clause 5 Section 15, notes 1, 2 and
3
This clause amends the section to remove the requirement that the
Austroads Incorporated publication, Assessing Fitness to Drive, must be
notified on the legislation register. The Legislation Act, section 47 (6) is
displaced here because the medical standards set out in the publication are
nationally applicable and the publication is freely available on the Austroads
website.
Clause 6 Section 23 (4)
Section 23 sets out
requirements for heavy vehicle learners, including requirements (see subsection
(3) (b) and (c)) that the driver be accompanied by an instructor who is the
holder of a full licence of the relevant class and that the driver and
instructor are the only people in the vehicle. Subsection (4) provides that
these requirements do not apply to an authorised person during a test or
assessment of the driver’s driving ability. The section is amended to
provide that the requirements also do not apply to a heavy vehicle driver
assessor.
Clause 7 Section 23 (4), notes 2 to 4
This clause
amends a minor typographical error in the notes.
Clause 8 Section 28
(2) (h)
The paragraph provides that for a heavy vehicle licence the
person must successfully complete an approved heavy vehicle driver training
course or a test or assessment set by the road transport authority. The
existing paragraph provides that the test or assessment must be carried out by
an authorised person. The paragraph is amended to provide that the test or
assessment must be carried out by an authorised person or heavy vehicle driver
assessor.
Clause 9 Section 28 (4)
This clause brings a
cross-reference within the section into line with current drafting
practice.
Clause 10 Part 7 and division 7.1 headings
This
clause replaces the headings to part 7 and division 7.1. The new part 7 heading
includes a reference to ‘heavy vehicles driver assessors’ consequent
on the extension of the part to include the accreditation of heavy vehicle
driver assessors. The heading to division 7.1 is amended to remove a reference
to ‘driving instructors’ since part 7 will apply to the
accreditation of driving instructors and heavy vehicle driver
assessors.
Clause 11 New section 103A
This clause defines the
term “accreditation” for the purpose of part 7 to mean accreditation
under section 107 as a driving instructor or heavy vehicle driver
assessor.
Clause 12 Section 104 heading
The heading is
amended to remove a reference to ‘driving instructors’ since part 7
will apply to the accreditation of driving instructors and heavy vehicle driver
assessors.
Clause 13 Section 104 (1) (b), (c) and (d)
This clause amends the section to include new eligibility criteria for accreditation as a heavy vehicle driver assessor. To be eligible for accreditation as a heavy vehicle driver assessor a person must:
• hold a licence of the same class as, or a higher class than, the licence class for which the person is applying for accreditation as an assessor;
• have sufficient driving ability, and knowledge of safe driving
practices and road law to provide heavy vehicle driver assessment;
and
• have the other skills needed to provide driver assessment for the
licence class for which application is made.
Clause 14 Section 104 (1) (g)
This paragraph is amended to remove a reference to ‘driving
instructor’ since part 7 will apply to the accreditation of driving
instructors and heavy vehicle driver assessors.
Clause 15 Section 104A
heading and subsection (1)
This clause replaces the heading to section
104A to provide for its application to both driving instructors and heavy
vehicle driver assessors.
This clause expands section 104A (1) to set out the training requirements for heavy vehicle driver assessors. To be eligible for accreditation as a heavy vehicle driver assessor, a person must have:
• within the previous 1-year period, completed a training course
approved under section 122 for heavy vehicles driver assessors for the licence
class for which accreditation is sought; or
• within the previous
5-year period, held accreditation as a heavy vehicle driver assessor for the
class of licence, or a higher class, for which accreditation is
sought.
Clause 16 Section 106 (1) (d)
This clause makes a
consequential amendment to the paragraph to reflect that the road transport
authority may approve a code of practice for heavy vehicle driver assessors
under section 118 as amended by clause 23.
Clause 17 New Section 107
(2) (f)
If the road transport authority approves an application for
accreditation, subsection 107 (2) requires the authority to issue a
certificate of accreditation. The certificate must include the person’s
name, a photograph of the person, the person’s accreditation number and
the expiry date of the accreditation. This clause inserts a new provision to
also require that a certificate of accreditation for a heavy vehicle driver
assessor must include the licence class for which the person is
accredited.
Clause 18 Section 108
Existing section 108
provides that a driving instructor must display his or her certificate of
accreditation and produce it when required by a police officer or authorised
person. New sections 108, 108A and 108B are substituted.
New section 108
contains the requirements for a driving instructor in relation to the display of
a certificate of accreditation inside a motor vehicle when providing driver
instruction or assessment. It requires that information on the photo-side of
the certificate can reasonably be read by a person in the driver’s seat or
that the certificate be displayed in accordance with guidelines made, or an
approval given, under the section. A decision to refuse to give an approval is
reviewable by the ACT Civil and Administrative Tribunal (see clause
39).
New Section 108A is a similar provision for a heavy vehicle driver
assessors. It requires that information on the photo-side of the certificate
can reasonably be read by a person in the driver’s seat where the driver
assessor uses a motor vehicle that is owned by the assessor or assessor’s
employer. Otherwise, the assessor must show the assessor’s certificate of
accreditation, before beginning assessment, to the person being assessed.
The reason for the difference in requirements for instructors and
assessors is that driving instructors use their own vehicle for driver
instruction and assessment.
New Section 108B creates an offence for a
driving instructor or heavy vehicle driver assessor to fail to produce a
certificate of accreditation for inspection when required by a police officer or
authorised person.
The offences under the new sections are strict
liability offences.
Clause 19 Section 111 (e) and (f)
This
clause amends the titles of provisions mention in section 111 consequent on
other amendments.
Clause 20 Section 112 (7)
This clause makes
it clear that if a person’s accreditation is suspended, that person is
disqualified from applying for accreditation for the duration of the suspension
period.
Clause 21 Division 7.3 heading
This clause replaces the
heading to division 7.3 to provide for its application to both driving
instructors and heavy vehicle driver assessors.
Clause 22 Section
115
Existing section 115 requires a driving instructor to hold personal
liability insurance for at least $5 000 000 and to produce evidence of the
policy when required.
New section 115 requires a driving instructor or
heavy vehicle driver assessor to be covered by such a policy rather than to hold
such a policy personally. This allows a relevant association to obtain the
requisite insurance cover on behalf of its members.
New section 115A
creates an offence for a driving instructor or heavy vehicle driver assessor who
fails to produce evidence of an insurance policy mentioned in section 115
when required by a police officer or authorised person. The section provides a
defence that the offender may be given 3 days to produce the required evidence
if they have a reasonable excuse for failing to produce the evidence when
required.
Clause 23 Section 118 heading and subsection (1)
This
clause replaces the section heading and subsection (1) to provide for the
application of codes of practice to both driving instructors and heavy vehicle
driver assessors.
Clause 24 Section 119 heading and subsection
(1)
This clause replaces the section heading and subsection (1) to
provide for the application of assessment standards to both driving instructors
and heavy vehicle driver assessors.
Clause 25 New Section
119A
This clause inserts a new section to provide that a heavy vehicle
driver assessor who is accredited for a particular licence class may assess a
person for a lower licence class and, to remove any doubt, makes it clear that a
heavy vehicle driver assessor is not authorised to instruct or assess a driver
for a car licence.
Clause 26 Section 120 (1) (a)
This clause
substitutes an amended paragraph so that its requirements in relation to
suitability for accreditation apply to both driving instructors and heavy
vehicle driver assessors.
Clause 27 Section 120 (1) (b)
This
clause amends the section to provide for its application to both driving
instructors and heavy vehicle driver assessors.
Clause 28 Section 121
and 122
This clause amends these sections, which are about tests and
medical examinations of driving instructors and training for driving
instructors, to provide for its application to both driving instructors and
heavy vehicle driver assessors. A requirement to undertake training, or a
decision not to approve a course, is reviewable by the ACT Civil and
Administrative Tribunal (see clause 40).
Clause 29 Section 122A (2)
(a) (i)
This clause amends the section, which is about accreditation
guidelines, to provide for its application to both driving instructors and heavy
vehicle driver assessors.
Clause 30 Dictionary, definition of
accreditation
This clause substitutes a new definition of
‘accreditation’ for the existing definition to include both driving
instructors and heavy vehicle driver assessors within the meaning of the term.
Clause 31 Dictionary, definitions of approved driving instructors
training course and approved learner driver standards
This
clause omits these definitions from the dictionary consequent on changes in
terminology used in other amendments.
Clause 32 Dictionary, definition
of driver assessment
This clause substitutes a new definition of
‘driver assessment’ for the existing definition to include both
driving instructors and heavy vehicle driver assessors within the meaning of the
term.
Clause 33 Dictionary, new definition of heavy vehicle driver
assessor
This clause inserts into the dictionary a new definition of
‘heavy vehicle driver assessor’.
Clause 34 Further
amendments, mentions of allied medical professional
This clause
brings the references in the regulation to ‘allied medical
professional’ in the body of the regulation into line with the relevant
term in the dictionary which is ‘allied professional practitioner’.
Part 3 Road Transport (General) Regulation 2000
Clause
35 Legislation amended—pt 3
This clause provides that the part
amends the Road Transport (General)
Regulation 2000.
Clause 36 Section 14 (1) (f) and
(g)
This clause amends the section, which is about refund of fees,
consequent on the amendments of the Road Transport (Driver Licensing)
Regulation 2000 to provide for the wider application of the accreditation
provisions in the regulation to both driving instructors and heavy vehicle
driver assessors.
Clause 37 Section 14 (2), note
This clause
amends the section, which is about refund of fees, consequent on the amendments
of the Road Transport (Driver Licensing) Regulation 2000 to provide for
the wider application of the accreditation provisions in the regulation to both
driving instructors and heavy vehicle driver assessors.
Clause
38 Section 16 (1) (b)
This clause amends the section, which is about
dishonour notices, consequent on the amendments of the Road Transport (Driver
Licensing) Regulation 2000 to provide for the wider application of the
accreditation provisions in the regulation to both driving instructors and heavy
vehicle driver assessors.
Clause 39 Schedule 1 part 1.4, new items 46A
and 46B
This clause adds as decisions reviewable by the ACT Civil and
Administrative Tribunal decisions not to approval a way in which a driving
instructor or heavy vehicle driver assessor may display a certificate of
accreditation.
Clause 40 Schedule 1, part 1.4, items 51 and
52
This clause adds as decisions reviewable by the ACT Civil and
Administrative Tribunal decisions to require a heavy vehicle driver assessor to
undertake further training or not approve a course for training for heavy
vehicle assessors.
Clause 41 Dictionary, new definition of heavy
vehicle driver assessor
This amendment is consequential on the use of
the term ‘heavy vehicle driver assessor’ in the amendments of part
1.4 of schedule 1 of the regulation.
Clause 42 Further amendments,
mentions of instructor
This clause adds as decisions reviewable by
the ACT Civil and Administrative Tribunal a range of decisions relating to the
accreditation of heavy vehicle driver assessors.
Part 4 Road Transport (Mass, Dimensions and Loading) Regulation
2010
Clause 43 Legislation amended—pt 4
This clause
provides that the part amends the Road Transport (Mass, Dimensions and
Loading) Regulation 2010.
Clause 44 Parts 2 and 3
heading
This clause removes references to the Road Transport (Mass,
Dimensions and Loading) Act 2009 in the headings to bring them into line
with current drafting practice.
Clause 45 New section 54
(1A)
This clause inserts a new section 54 (1A) to provide that a
determination by the road transport authority in relation to gross road train
mass is a notifiable instrument. This amendment brings the section in line with
the requirement in all other provisions in the regulation about determinations
relating to road trains to be notifiable instruments. These include section 56
(Length of road trains) and schedule 1, section 1.17 (Mass limits for axle
spacing).
Clause 46 Part 4 heading
This clause removes
references to the Road Transport (Mass, Dimensions and Loading) Act 2009
in the heading to bring it into line with current drafting
practice.
Clause 47 Section 63, note
This clause amends the
note to bring it into line with new national arrangements for trade measurement.
In April 2007 the Council of Australian Governments agreed to establish a
national system of trade measurement. The system provides a national legal
framework to ensure that weights and measures used in trade are accurate. The
arrangements are given effect to by the National Measurement Amendment Act
2008 (Cwlth) which comes into effect on 1 July 2010.
Clause
48 Section 66 (1) (c)
This clause gives effect to the new national trade
measurement arrangements under the National Measurement Act 1960 (Cwlth)
commencing on 1 July 2010.
Clause 49 Section 66 (1) (c)
note
This clause gives effect to the new national trade measurement
arrangements under the National Measurement Act 1960 (Cwlth) commencing
on 1 July 2010.
Clause 50 Part 5 heading
This clause removes
references to the Road Transport (Mass, Dimensions and Loading) Act 2009
in the heading to bring it into line with current drafting
practice.
Clause 51 Dictionary, definition of measuring
instrument
This clause replaces the Trade Measurement Act 1999
(ACT) definition of ‘measuring instrument’ with the National
Measurement Act 1960 (Cwlth) definition consistent with the commencement of
new national arrangements on 1 July 2010.
Part 5 Road Transport (Offences) Regulation 2005
Clause
52 Legislation amended—pt 5
This clause provides that the part
amends the Road Transport (Offences)
Regulation 2005.
Clause 53 Schedule 1, part 1.6, items 37 and
38
This clause updates the regulation consequent on existing section 108
of the Road Transport (Driver Licensing) Regulation 2000 being split into
new sections 108, 108A and 108B (see clause 18).
Clause 54 Schedule
1, part 1.6, items 44 and 45
This clause updates the regulation
consequent on existing section 115 of the Road Transport (Driver Licensing)
Regulation 2000 being split into new sections 115 and 115A (see clause 22).
Clause 55 Schedule 1, part 1.8A, item 1, column 2
This clause
corrects a typographical error for a section reference to the Road Transport
(Mass, Dimensions and Loading) Act 2009.
Clause 56 Schedule 1,
part 1.8A, item 2, column 2
This clause corrects a typographical error
for a section reference to the Road Transport (Mass, Dimensions and Loading)
Act 2009.
Clause 57 Schedule 1, part 1.8A, item 3, column
2
This clause corrects a typographical error for a section reference to
the Road Transport (Mass, Dimensions and Loading) Act 2009.