Untitled document
Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009
No. 93 of 2009
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
Part 2—Amendment of the Marine Act 1988
3Amendment of definition section
4Effecting registration, renewal or transfer
5New Part 7A inserted
Part 7A—Impoundment, Immobilisation and Forfeiture of Recreational Vessels
Division 1—Preliminary
62APart 7A definitions
62BPart does not affect other penalties
62CPart has prospective application
Division 2—Impoundment or immobilisation of recreational vessels
62DPowers of police
62ESeizure of recreational vessel
62FSurrender of recreational vessel
62GImpoundment or immobilisation of a recreational
vessel62HAuthorised persons
62INotice to operator, owner or registered person
62JContent of notice
62KReview by a senior police officer
62LRelease of recreational vessel by Victoria Police
62MAppeal rights
62NOffences
62ORecovery of recreational vessel
62PCrown to pay costs if operator found not guilty or charges not proceeded with
Division 3—Impoundment, immobilisation or forfeiture of recreational vessels by court order
62QImpoundment or immobilisation order
62RForfeiture order
62SApplication for an impoundment or immobilisation
order or a forfeiture order62TNotice of application
62UInterest in recreational vessel not to be transferred
62VNotice in case of 2 or more charges
62WDirection not to transfer registration or register recreational vessel
62XDirector not to transfer registration or register recreational vessel
62YCessation of direction under this Act does not affect
any suspension62ZHearing of application
62ZAApplication for variation of order
62ZBWhen order takes effect
62ZCPolice powers
62ZDLiability for costs of impoundment or immobilisation
62ZEOwnership rights
62ZFThird party protection from forfeiture order
Division 4—Search and seizure warrants
62ZGApplication for search and seizure warrant
62ZHSearch and seizure warrant
62ZIRecord of proceedings for search and seizure warrant
62ZJAnnouncement before entry
62ZKCopy of search and seizure warrant to be given to occupier
62ZLUse of assistants to execute search and seizure warrant
62ZMApplication of Magistrates' Court Act 1989
62ZNExpiry of search and seizure warrant
62ZOReport on execution of search and seizure warrant
62ZPObstruction or hindrance of person executing search a
nd seizure warrant
Division 5—Disposal of recreational vessels
Subdivision 1—Disposal of recreational vessels, items and things
62ZQSale or disposal of uncollected recreational vessels
and items
Subdivision 2—Disposal of recreational vessels, items or things if forfeiture order has taken effect
62ZRSale or disposal of recreational vessel subject to forfeiture order
62ZSApplication of proceeds of sale
Subdivision 3—Disposal of recreational vessels, items or things subject to disposal order
62ZTDisposal of recreational vessel, item or thing subject
to disposal order62ZUNotice to be given of intention to apply for disposal order
62ZVApplication for disposal order
62ZWHearing of application for and making of disposal
order62ZXApplication of proceeds of sale
Division 6—Miscellaneous
62ZYService of notices under Part 7A
6Exclusion orders
7Insertion of new section 85ATA
85ATACorporations displacement provision
8New Part 10AA inserted
Part 10AA—Prohibition of Use of Recreational Vessels and Hire and Drive Vessels
Division 1—Preliminary
112APart 10AA definitions
112BPart does not affect other penalties
112CPart has prospective application
Division 2—Embargo notices and prohibition directions
112DPower to issue embargo notices
112EPolice power to prohibit operation of vessels
Division 3—Authorised officers
112FAppointment
112GIdentity cards
112HReturn of identity cards
112IProduction of identity card
9Subject matter for regulations
Part 3—Amendment of the Port Services Act 1995
10Definitions
11New Part 4A inserted
Part 4A—Regulation of Towage Services
Division 1—Preliminary
73ADefinitions
Division 2—Towage requirements
73BTowage requirements determination
73CProcess for making a towage requirements
determination73DEntitlement to make submissions
Division 3—Notification of towage service providers
73EOffence to provide towage services without
notification73FMaking notification
73GProcedure for acknowledgment of notification
73HPeriod for which notification remains in force
73IRecord of towage service providers
Division 4—Towage conditions
73JDetermination of towage conditions
73KLimitations on making towage conditions
determinations73LService and publication of determination
73MComing into effect of towage conditions
73NProcess for making towage conditions determination
73OCompliance with determined towage condition
Division 5—General matters
73PReview by VCAT
73QPeriod for making application to VCAT
73RRepeal of Part
12New Part 5B inserted
Part 5B—Powers as to certain hazardous
or polluting activities or thingsDivision 1—Preliminary
88IDefinitions
Division 2—Pollution abatement
88JPollution abatement
88KRecovery of costs of clean up
88LRelationship with the Environment Protection Act 1970
Division 3—Hazardous port activities
88MHazardous port activity notice
88NHazardous port activity direction
88OOffence not to comply with hazardous port activity direction
Division 4—Abandoned or unclaimed goods or things
88POffence to leave things in port waters or on port land
88QRemoval of things
88RPowers when moving things
88SRequirement to make enquiries as to owner of thing
88TDisposal of thing
88URecovery of costs
88VPayment of compensation
88WProceeds of disposal where owner not located
13Insertion of section after section 96
97Power to prosecute
14Regulation making powers
Part 4—Amendment of the Transport Act 1983
15New Part VIIA inserted in the Transport Act 1983
Part VIIA—Enforcement and Related
Powers for the Port of MelbourneDivision 1—Preliminary
230KDefinition
230LAppointment
230MIdentity cards
230NReturn of identity cards
230OProduction of identity card
Division 2—Powers of entry and search of vessels
230PPower to enter and inspect vessels
230QProduction of identity card by port safety officers
before vessel searches230RConsent not needed for inspections
Division 3—Powers of entry and search of premises
230SEntry of premises with consent
230TEntry of premises without consent
230UPowers that may be exercised on entry
230VSecuring a site
230WOffence to enter secured site
Division 4—Provisions as to use of or seizure of equipment
or goods230XUse of equipment to examine or process things
230YCopies of certain things seized to be given
230ZAccess to seized things
230ZARetention and return of seized documents or things
230ZBMagistrates' Court may extend 3 month period
Division 5—General
230ZCRequirement to assist port safety officer during entry
230ZDProtection against self-incrimination
230ZEPersons who may bring proceedings
Part 5—Amendment of the Road Safety Act 1986
16Suspension of approval of alcohol interlock supplier
17Conditions on approvals
18New sections 50AAIA, 50AAIB and 50AAIC inserted
50AAIAPower of immediate suspension
50AAIBInquiry
50AAICEffect of suspension
19Impoundment regime
20Disclosure of information
21New sections 92A and 92B inserted
92AMinister may make declaration in exceptional circumstances
92BDisclosure of personal information in exceptional circumstances
22Exemptions from fatigue management requirements
23Statute law revision
Part 6—Amendment of the Road Management Act 2004
24Powers of a road authority
25Responsible road authority
26Removal of stationary vehicles
27Removal of abandoned property
28Regulations
29Power to move other obstructions
Part 7—Amendment of the Melbourne City Link Act 1995
30Repeal
31Statute law revision
Part 8—Amendment of the Accident Towing Services Act 2007
32Roster entitlements
33New sections inserted after section 140H
140IOffence not to carry permit when driving
140JOffence not to produce permit when asked
34Direction to state name and address
35Regulation making powers
Part 9—Amendments relating to VicRoads
Division 1—Transport Act 1983
36Amendment of section 16—Objects and functions of Roads Corporation
Division 2—EastLink Project Act 2004
37Amendment of section 3—Definitions
38New section 4A inserted
4AFunctions and powers of VicRoads
39Consequential amendments
40New Part 12 inserted
Part 12—Transfer of project from the southern and eastern Integrated Transport Authority to VicRoads
260Definitions
261Transfer of the Project
262Property transferred to VicRoads
263Transfer subject to encumbrances
264Substitution of party to agreement
265Instruments
266Proceedings
267Interests in land
268Action by Registrar of Titles
269Taxes
270Evidence
271Transfer of employees
272Validity of things done under this Part
Division 3—Southern and Eastern Integrated Transport
Authority Act 2003
41Amendment of section 3—Definitions
42Repeal of section 4—The EastLink Project
Part 10—Amendment of the Major Transport Projects Facilitation Act 2009
43Statute law revision
Part 11—Amendment of the Crimes Act 1958
44New section 317B inserted
317BInterpretation
45Culpable driving causing death
46New section 615 inserted in Crimes Act 1958
615Transitional provision—Transport Legislation Amendment (Hoon Boating and Other
Amendments) Act 2009
47Evidentiary provisions in Marine Act 1988
48Cancellation of operator licence under Marine Act 1988
49Consequential amendments
Part 12—Repeal
50Repeal of Act
═══════════════
Endnotes
Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009
No. 93 of 2009
[Assented to 15 December 2009]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The purposes of this Act are—
(a)to amend the Marine Act 1988—
(i)to provide for embargo notices to be issued prohibiting the operation of a recreational vessel;
(ii)to provide for the giving of directions prohibiting a person from operating any recreational vessel or a hire and drive vessel for a specified period in certain circumstances;
(iii)to enable the seizure and impoundment or immobilisation of recreational vessels in certain circumstances;
(iv)to allow the court to order the impoundment, immobilisation or forfeiture of recreational vessels in certain circumstances;
(v)to make further provision in relation to minor matters in that Act;
(b)to amend the Port Services Act 1995 to make provision—
(i)in relation to the provision of towage services;
(ii)as to certain hazardous or polluting activities or things;
(iii)as to other minor matters;
(c)to amend the Transport Act 1983, to make further provision as to the functions of the Roads Corporation and as to enforcement powers and other minor matters;
(d)to amend the Road Safety Act 1986 in relation to—
(i)disclosure of information; and
(ii)suppliers of alcohol interlocks; and
(iii)fatigue management requirements for rail replacement bus services, emergency services and bus services provided in response to an emergency;
(e)to amend the Road Management Act 2004 in relation to—
(i)clearance of obstructions on roads; and
(ii)regulation-making powers;
(f)to amend the Melbourne City Link Act 1995 to repeal a redundant provision;
(g)to amend the Accident Towing Services Act 2007 to make further provision in relation to the holders of tow truck trainee permits and other minor matters;
(h)to make amendments to the EastLink Project Act 2004 and the Southern and Eastern Integrated Transport Authority Act 2003 in relation to the EastLink project;
(i)to make amendments to the Major Transport Projects Facilitation Act 2009 of a statute law revision nature;
(j)to amend the Crimes Act 1958 to extend the offences of culpable driving causing death and dangerous driving causing death or serious injury to the operating of vessels and to make consequential amendments to other Acts;
(k)to make other amendments of a statute law revision nature.
2Commencement
(1)Section 1 and this section come into operation on the day after the day on which this Act receives the Royal Assent.
(2)Section 23(3) is deemed to have come into operation on 9 November 2009.
(3)Subject to subsection (4), the remaining provisions of this Act come into operation on a day or days to be proclaimed.
(4)If a provision referred to in subsection (3) does not come into operation before 1 September 2011, it comes into operation on that day.
__________________
Part 2—Amendment of the Marine Act 1988
3Amendment of definition section
After section 3(4) of the Marine Act 1988 insert—
"(5)In the case of a contravention in the port of Melbourne of a relevant marine safety law that is constituted by a contravention of the Port Services Act 1995, for the purposes of Divisions 4 and 5 of Part 8, a reference to an inspector is taken to include a reference to a port safety officer appointed under Part VIIA of the Transport Act 1983.".
4Effecting registration, renewal or transfer
In section 10(1) of the Marine Act 1988, after "the regulations" insert "and Division 3 of Part 7A".
5New Part 7A inserted
After Part 7 of the Marine Act 1988 insert—
'Part 7A—Impoundment, Immobilisation and Forfeiture of Recreational Vessels
Division 1—Preliminary
62APart 7A definitions
(1)In this Part—
appeal period, in relation to a conviction or an impoundment or immobilisation order or a forfeiture order, means the period ending—
(a)if the period provided for the lodging of an appeal against the conviction or order has ended without such an appeal having been lodged, at the end of that period; or
(b)if an appeal against the conviction or order has been lodged, when the appeal is abandoned or finally determined;
authorised person means a person authorised by a member of the police force under section 62H;
conviction, in relation to a relevant offence, includes a finding of guilt of the relevant offence without the recording of a conviction;
designated costs means the cost of impounding or immobilising a recreational vessel under this Part including, where relevant, the cost of—
(a)moving the recreational vessel to a holding yard or place where the recreational vessel is to be immobilised; and
(b)storing the recreational vessel at the holding yard or place where the recreational vessel is immobilised; and
(c)releasing the recreational vessel from the holding yard or from immobilisation—
and includes any additional costs incurred if the recreational vessel is impounded or immobilised for longer than the designated period or the period specified under an impoundment or immobilisation order;
designated period, in relation to a recreational vessel, means the period of 48 hours beginning with the seizure or surrender of the recreational vessel under section 62E or 62F, but if the period expires outside of normal business hours, the period extends to 9.00 a.m. on the next business day, being a day other than a Saturday, a Sunday or a public holiday appointed under the Public Holidays Act 1993;
disposal order means an order made under section 62ZW;
forfeiture order means an order made by a court under section 62R;
holding yard means a place used for the storage of recreational vessels impounded under this Part;
impoundment or immobilisation order means an order made by a court under section 62Q;
landing place includes the following—
(a)an intersection between land and water at which it is reasonably safe to land a vessel;
(b)a place intended for the landing or berthing of vessels, including, but not limited to, a wharf, boat ramp, marina, pier or jetty;
member of police personnel has the same meaning as in the Police Regulation Act 1958;
operator, in relation to a recreational vessel, means the person who is operating (within the meaning of Part 10A) the recreational vessel;
public place includes, but is not limited to—
(a)any public place within the meaning of public place in the Summary Offences Act 1966; and
(b)State waters;
registered person, in relation to a recreational vessel, means the person who is registered as the owner or operator of the recreational vessel in accordance with regulations made under this Act;
relevant court, in relation to an application made under this Part, means—
(a)the court with jurisdiction to hear and determine the relevant offence to which the application relates; or
(b)if an application is made after the sentencing of the operator for a relevant offence, the Magistrates' Court;
relevant offence means an offence against section 22;
safe landing place means a landing place at which it is safe to immobilise the relevant vessel for the balance of the designated period, taking into account the weather conditions and facilities available during the designated period;
search and seizure warrant means a warrant issued under section 62ZH(1);
senior police officer means a member of the police force of or above the rank of Inspector.
(2)For the purposes of an application for an impoundment or immobilisation order or a forfeiture order, charges for more than one relevant offence arising out of the same single set of circumstances are to be treated as a charge for one relevant offence.
(3)For the purposes of subsection (2), a single set of circumstances is constituted by one continuous period during which a person continues to operate or be in charge of a recreational vessel.
62BPart does not affect other penalties
The impoundment, immobilisation or forfeiture of a vessel under this Part arising out of the commission of a relevant offence is in addition to, and does not limit or otherwise affect, any penalty that may be imposed on the person for the relevant offence other than under this Part.
62CPart has prospective application
This Part applies only to relevant offences committed on or after the commencement of section 5 of the Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009.
Division 2—Impoundment or immobilisation of recreational vessels
62DPowers of police
(1)If a member of the police force believes on reasonable grounds that a recreational vessel is being or has been used in the commission of a relevant offence, he or she may—
(a)seize the recreational vessel or require it to be surrendered;
(b)impound the recreational vessel for the designated period;
(c)immobilise the recreational vessel for the designated period;
(d)authorise any person under section 62H to assist in seizing, impounding or immobilising the recreational vessel.
(2)If a member of the police force has exercised a power to seize, impound or immobilise a recreational vessel under this Division in relation to a particular relevant offence and the recreational vessel has since been released—
(a)the power to seize, impound or immobilise that recreational vessel under this Division for that particular relevant offence may not be exercised again; and
(b)an embargo notice must not be issued in respect of the recreational vessel for that particular relevant offence; and
(c)a prohibition direction must not be issued to the operator of the vessel at the time of the particular relevant offence in respect of that offence.
(3)For the purposes of this section—
embargo notice means a notice under section 112D;
prohibition direction means a direction to a person under section 112E.
62ESeizure of recreational vessel
(1)For the purposes of impounding or immobilising a recreational vessel under this Part, a member of the police force may seize the recreational vessel—
(a)from a public place; or
(b)from a place that is not a public place with the consent of the owner or occupier of that place; or
(c)from a place that is not a public place with a search and seizure warrant.
(2)The period within which a recreational vessel may be seized under subsection (1) is—
(a)in the case of seizure from a public place or a place that is not a public place with the consent of the owner or occupier of that place—
(i)48 hours after the alleged commission of the relevant offence; or
(ii)if a notice is served under section 62F(1), 10 days after the expiry of the period specified in that notice; or
(b)in the case of seizure from a place that is not a public place under a search and seizure warrant, the period specified in that warrant.
(3)In order to seize a recreational vessel under subsection (1), a member of the police force may—
(a)board or enter the recreational vessel, using reasonable force if necessary;
(b)operate or move the recreational vessel by any reasonable means, including, but not limited to, by trailer, motor vehicle or vessel;
(c)if, after having taken reasonable steps to obtain the keys, the keys are not available, cause any locking device or other feature of the recreational vessel that is impeding the seizure of the recreational vessel to be removed, dismantled or neutralised;
(d)seize, operate or move a trailer, motor vehicle or other thing on which the recreational vessel is resting or by which the recreational vessel is transported by the operator, owner or registered person.
62FSurrender of recreational vessel
(1)If a member of the police force believes on reasonable grounds that a recreational vessel has been used in the commission of a relevant offence, he or she may serve a notice on the registered person or owner of the recreational vessel requiring the surrender of the recreational vessel.
(2)A notice served under subsection (1) must—
(a)be served within 10 days of the member of the police force forming the belief that the recreational vessel has been used in the commission of a relevant offence; and
(b)specify a period within which the recreational vessel must be surrendered which must not commence less than 7 days after the notice is served.
(3)Service of a notice under subsection (1) may be effected—
(a)by serving it personally on the owner or registered person of the recreational vessel or, if that person is a company, on a director, secretary or other officer of the company; or
(b)by posting it, addressed to the person, to the registered address or the residential address of the owner or registered person of the recreational vessel.
(4)A notice under subsection (1) must include—
(a)a statement by a member of the police force that the recreational vessel is liable to impoundment or immobilisation because that member believes on reasonable grounds that the recreational vessel was used in the commission of a relevant offence; and
(b)a statement of the nature of the relevant offence and the date and time when the relevant offence is alleged to have been committed; and
(c)the name of the operator of the recreational vessel who is alleged to have committed the relevant offence; and
(d)the date, time and place at which the recreational vessel is required to be surrendered to a member of police personnel; and
(e)a statement that if the recreational vessel is not surrendered at the date, time and place specified in the notice a member of the police force may seize the recreational vessel in accordance with section 62E; and
(f)the prescribed particulars (if any).
(5)An owner or registered person served with a notice under subsection (1) must comply with the notice, unless the owner or registered person has a reasonable excuse.
Penalty:60 penalty units.
(6)If the recreational vessel is not surrendered to a member of police personnel at the date, time and place specified in a notice served under subsection (1), a member of the police force may, within 10 days after the period specified in the notice expires, exercise any power under section 62D or 62E to seize the recreational vessel.
62GImpoundment or immobilisation of a recreational vessel
If a recreational vessel is seized or surrendered in accordance with this Division, a member of the police force may do any one or more of the following—
(a)move, or cause to be moved, the recreational vessel to a holding yard by any reasonable means and impound it there for the balance of the designated period;
(b)move, or cause to be moved, a trailer, motor vehicle or other thing by which the recreational vessel is transported by the operator, owner or registered person or on which the recreational vessel is resting to a holding yard and impound it there for the balance of the designated period;
(c)cause the recreational vessel to be immobilised at a safe landing place or on land or on anything on land (including, but not limited to, a trailer) for the balance of the designated period;
(d)cause a trailer or other thing on which the recreational vessel is resting to be immobilised for the balance of the designated period;
(e)do anything else reasonably necessary to impound or immobilise the recreational vessel.
62HAuthorised persons
In exercising powers under section 62E, 62G or 62ZC, a member of the police force may authorise any person to assist him or her to—
(a)board or enter a recreational vessel, using reasonable force if necessary;
(b)if the recreational vessel is on water—
(i)operate or move a recreational vessel by any reasonable means including, but not limited to, by towing vessel;
(ii)move the recreational vessel onto land or onto a trailer, motor vehicle or other thing on land;
(c)if the recreational vessel is on land or on any thing that is on land, move by any reasonable means including, but not limited to, by means of a trailer or towing vehicle—
(i) the recreational vessel; or
(ii)a trailer, motor vehicle or other thing by which the recreational vessel is transported by the operator, owner or registered person or on which the recreational vessel is resting—
in order to move the recreational vessel to a holding yard;
(d)cause any locking device or other feature of the recreational vessel that is impeding the exercise of powers under this Part to be removed, dismantled or neutralised;
(e)operate or move a trailer, vessel, motor vehicle or other thing on which the recreational vessel is resting or by which the recreational vessel is transported by the operator, owner or registered person;
(f)cause a recreational vessel to be immobilised at a safe landing place or on land by any reasonable means including, but not limited to, by immobilising a trailer or other thing on which the recreational vessel is resting;
(g)store a recreational vessel and, if applicable, a trailer or other thing on which the recreational vessel is resting, in a holding yard;
(h)release a recreational vessel and, if applicable, a trailer or other thing on which the recreational vessel is resting, when authorised by a member of the police force to do so.
62INotice to operator, owner or registered person
(1)As soon as is reasonably practicable after a recreational vessel is impounded or immobilised under section 62G, a member of the police force must serve written notice of the impoundment or immobilisation on—
(a)the operator of the recreational vessel; and
(b)the registered person of the recreational vessel, if he or she is not the person referred to in paragraph (a); and
(c)the owner of the recreational vessel, if he or she is not a person referred to in paragraph (a) or (b).
(2)A person who—
(a)is an owner or registered person of a recreational vessel in relation to which a notice under subsection (1) has been served; and
(b)who does not have an interest or the sole interest in that recreational vessel—
must, as soon as is reasonably practicable, take reasonable steps to serve a copy of the notice on any person who he or she is aware has an interest in the recreational vessel.
Note
See section 62ZY for how a notice may be served.
62JContent of notice
A notice under section 62I must be in a form approved by the Chief Commissioner of Police and must state—
(a)the operator's name; and
(b)the identification mark of the recreational vessel; and
(c)the engine number and the length, breadth and colour of the recreational vessel; and
(d)the date and time when the recreational vessel was impounded or immobilised; and
(e)the date of the relevant offence in respect of which the recreational vessel has been impounded or immobilised; and
(f)the date and time when the recreational vessel is eligible for release; and
(g)the process by which the impounded or immobilised recreational vessel may be released, including—
(i)the location of the recreational vessel; and
(ii)the designated costs payable; and
(iii)if relevant, the contact details of the person who can release an immobilised recreational vessel; and
(iv)that satisfactory evidence of the entitlement of a person seeking to have the recreational vessel released may be required before the recreational vessel will be released; and
(h)that if a charge-sheet is filed containing a charge for a relevant offence and the operator has committed one or more previous relevant offences since the commencement of section 5 of the Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009, the Chief Commissioner of Police may, under section 62S, apply to the relevant court for an impoundment or immobilisation order under section 62Q or a forfeiture order under section 62R; and
(i)if applicable, that a trailer, motor vehicle or other thing has been impounded or immobilised under section 62G for the purposes of impounding or immobilising the recreational vessel; and
(j)any other prescribed particulars.
62KReview by a senior police officer
(1)A member of the police force who impounds or immobilises a recreational vessel under section 62G, or who authorises another person to do so, must, as soon as is practicable and in any event within 48 hours after the recreational vessel is impounded or immobilised, notify a senior police officer of the grounds on which he or she relied in forming the belief that the recreational vessel was used in the commission of a relevant offence.
(2)A senior police officer who is notified in accordance with subsection (1) must make inquiries into the circumstances of the impoundment or immobilisation and if, after making those inquiries, he or she is not satisfied that there were reasonable grounds to impound or immobilise the recreational vessel, must ensure that the recreational vessel is released and returned to the owner or registered person as soon as is practicable.
62LRelease of recreational vessel by Victoria Police
(1)A recreational vessel impounded or immobilised under section 62G must be released to the owner, registered person or any other person entitled to possession as soon as is practicable if—
(a)a member of the police force is satisfied that, at the time the relevant offence was committed, the recreational vessel used in the commission of the relevant offence was stolen; or
(b)under section 62K a senior police officer is not satisfied that there were reasonable grounds to impound or immobilise the recreational vessel; or
(c)a senior police officer considers it reasonable or necessary to release the recreational vessel; or
(d)the Magistrates' Court has made an order under section 62M(3).
(2)If a recreational vessel is released in accordance with subsection (1)(a) or (b) the Crown is liable to pay the designated costs.
(3)A senior police officer may, at his or her discretion, waive the designated costs if a recreational vessel is released in accordance with subsection (1)(c).
(4)If—
(a)a recreational vessel is released without any designated costs payable by a person seeking the release of the recreational vessel in accordance with this section; and
(b)the operator is subsequently found guilty of the relevant offence for which the recreational vessel was impounded or immobilised—
the Chief Commissioner of Police may apply to the relevant court for an order that the operator pay to the Chief Commissioner of Police the designated costs.
62MAppeal rights
(1)If a recreational vessel is impounded or immobilised under section 62G, a person whose interests are substantially affected by the impoundment or immobilisation may apply to the Magistrates' Court for an order that the recreational vessel be released on the ground that the impoundment or immobilisation is causing, or will cause, exceptional hardship to the applicant or any other person.
(2)An application under subsection (1) may be made at any time while the recreational vessel remains impounded or immobilised, including when the impoundment or immobilisation continues for longer than the designated period as a result of non-payment of the designated costs.
(3)On an application made under subsection (1), the Magistrates' Court may make an order that a recreational vessel impounded or immobilised under this Part be released to a specified person if the Court is satisfied that the impoundment or immobilisation is causing, or will cause, exceptional hardship to the applicant or any other person.
(4)If the Magistrates' Court makes an order under subsection (3), it may order that the applicant is not liable to pay all or part of the designated costs.
62NOffences
(1)A person must not, except in accordance with this Part or section 99A or 99B, move an impounded or immobilised recreational vessel or tamper with any equipment used to immobilise a recreational vessel.
Penalty:60 penalty units.
(2)It is not an offence under subsection (1) to move an impounded or immobilised recreational vessel or tamper with any of equipment used to immobilise a recreational vessel—
(a)if the impounded or immobilised recreational vessel is obstructing access to any property and it is necessary to move the recreational vessel to protect any person or property from a risk of imminent harm; or
(b)to protect the recreational vessel from a risk of imminent harm; or
(c)to comply with a direction made under this Act by the harbour master, the Director, a member of the police force or an authorised officer.
(3)A person must not obstruct or hinder a member of the police force in the valid exercise of a power under this Part.
Penalty:60 penalty units.
62ORecovery of recreational vessel
(1)A recreational vessel impounded or immobilised under section 62G must be released to the owner, registered person or any other person entitled to possession of it—
(a)subject to the provisions of this Part, on the expiration of the designated period; and
(b)on the payment of the designated costs; and
(c)on provision of satisfactory evidence, as prescribed, of that person's identity and his or her entitlement to recover the recreational vessel; and
(d)subject to satisfactory compliance with the prescribed particulars (if any).
(2)If no decision or order to release the recreational vessel has been made under section 62L or 62M, a member of the police force or an authorised person may—
(a)retain possession of an impounded recreational vessel; or
(b)continue to immobilise a recreational vessel—
in accordance with this Part until the designated costs are paid, even if the period during which the recreational vessel is impounded or immobilised is longer than the designated period.
62PCrown to pay costs if operator found not guilty or charges not proceeded with
If—
(a)the operator of a recreational vessel is subsequently found not guilty of the relevant offence in respect of which the recreational vessel was impounded or immobilised; or
(b)no charge-sheet is filed containing a charge for a relevant offence or such a charge-sheet is filed but not proceeded with within 12 months after the recreational vessel was impounded or immobilised—
then—
(c)the Crown is liable to refund any designated costs paid by any person; or
(d)the recreational vessel, if not already recovered by the owner, registered person or any other person entitled to possession of it, must be immediately released without any designated costs payable by the person seeking recovery of the recreational vessel.
Division 3—Impoundment, immobilisation or forfeiture of recreational vessels by court order
62QImpoundment or immobilisation order
(1)On the application of the Chief Commissioner of Police under section 62S(1), if an operator is found guilty of a relevant offence the relevant court may order that the recreational vessel used in the commission of the relevant offence be impounded or immobilised for a period of up to 3 months.
(2)An order under subsection (1) must not be made unless the relevant court is satisfied—
(a)that the operator has been found guilty of one other relevant offence committed in the period of 3 years before the commission of the relevant offence and on or after the commencement of section 5 of the Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009; and
(b)that at the time the relevant offence was committed the recreational vessel was not—
(i)a stolen recreational vessel; or
(ii)being used in any prescribed circumstances.
(3)An order made under subsection (1) must specify the time and place at which the owner or registered person of the recreational vessel is required to surrender the recreational vessel to a member of police personnel.
(4)The owner or registered person of the recreational vessel must not, without reasonable excuse, fail to surrender the recreational vessel at the time and place specified in the order made under subsection (1).
Penalty:60 penalty units.
62RForfeiture order
(1)On the application of the Chief Commissioner of Police under section 62S(1), if an operator is found guilty of a relevant offence the relevant court may order that the recreational vessel used in the commission of the relevant offence be forfeited to the Crown.
(2)An order under subsection (1) may only be made if the relevant court is satisfied—
(a)that the accused has been found guilty of 2 or more other relevant offences committed in the period of 3 years before the commission of the relevant offence and on or after the commencement of section 5 of the Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009; and
(b)that at the time the relevant offence was committed the recreational vessel was not—
(i)a stolen recreational vessel; or
(ii)being used in any prescribed circumstances.
(3)An order made under subsection (1) must specify the time and place at which the owner or registered person of the recreational vessel is required to surrender the recreational vessel to a member of police personnel.
(4)The owner or registered person of the recreational vessel must not, without reasonable excuse, fail to surrender the recreational vessel at the time and place specified in the order made under subsection (1).
Penalty:60 penalty units.
62SApplication for an impoundment or immobilisation order or a forfeiture order
(1)The Chief Commissioner of Police may make an application for an impoundment or immobilisation order or a forfeiture order to the relevant court if the Chief Commissioner believes on reasonable grounds that—
(a)the recreational vessel—
(i)was used in the commission of the relevant offence; and
(ii)at the time the relevant offence was committed, was not stolen or used in prescribed circumstances; and
(b)the operator has been found guilty of another relevant offence or other relevant offences (as the case requires) committed within the period of 3 years before the commission of the relevant offence and on or after the commencement of section 5 of the Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009.
(2)An application under subsection (1) may be made at any time after a charge-sheet is filed charging a relevant offence, but may not be made later than 28 days after the operator is sentenced for that relevant offence.
62TNotice of application
(1)If the Chief Commissioner of Police intends to make an application under section 62S(1), he or she must, at least 28 days before making the application, serve notice of the intended application on—
(a)the operator of the recreational vessel in respect of which an application is to be made; and
(b)the registered person of the recreational vessel, if he or she is not the person referred to in paragraph (a); and
(c)the owner of the recreational vessel, if he or she is not a person referred to in paragraph (a) or (b); and
(d)any person who the Chief Commissioner of Police is aware has an interest in the recreational vessel; and
(e)the Director.
Note
See section 62ZY for how a notice may be served.
(2)A person who—
(a)is notified under subsection (1)(a), (b) or (c); and
(b)who does not have an interest or the sole interest in the recreational vessel in relation to which the application in the notice is to be made—
must, as soon as is reasonably practicable, take reasonable steps to serve a copy of the notice on any person who he or she is aware has an interest in the recreational vessel.
(3)A notice under subsection (1) must specify the recreational vessel in respect of which an order is to be sought.
(4)A notice served under subsection (1) must state—
(a)that if the operator is found guilty of a relevant offence, an application for an impoundment or immobilisation order or a forfeiture order will be made by the Chief Commissioner of Police in respect of the recreational vessel specified in the notice; and
(b)the identification mark of the recreational vessel; and
(c)that a person named in the notice may appear before the relevant court at the hearing of the application and show cause why the order should not be made; and
(d)that the person on whom the notice is served must not sell or otherwise dispose of his or her interest in the relevant recreational vessel without the approval of the relevant court.
62UInterest in recreational vessel not to be transferred
(1)A person on whom a notice is served under section 62T(1) must not, before the application referred to in the notice is made and determined, or if an impoundment or immobilisation order or a forfeiture order is made, before the recreational vessel is seized under this Part, without the approval of the relevant court, sell or otherwise dispose of any interest in the recreational vessel that is the subject of the notice.
Penalty:60 penalty units.
(2)Subsection (1) ceases to apply if—
(a)the operator is found not guilty of the relevant offence for which the application is made; or
(b)the Chief Commissioner of Police does not make the application referred to in the notice within 28 days after the operator is sentenced for a relevant offence; or
(c)the charge for that relevant offence is withdrawn.
62VNotice in case of 2 or more charges
(1)If an operator has been charged with 2 or more relevant offences, the Chief Commissioner of Police may, before the charges are heard or determined, serve a notice on—
(a)the operator of the recreational vessel; and
(b)the registered person of the recreational vessel in respect of which an order is to be sought, if he or she is not the person referred to in paragraph (a); and
(c)the owner of the recreational vessel in respect of which an order is to be sought, if he or she is not the person referred to in paragraph (a) or (b); and
(d)any person who the Chief Commissioner of Police is aware has an interest in the recreational vessel in respect of which an order is to be sought; and
(e)the Director.
(2)If a person notified under subsection (1)(a), (b) or (c) does not have an interest or the sole interest in the recreational vessel, he or she must, as soon as is reasonably practicable, take reasonable steps to serve a copy of the notice under subsection (1) on any person who he or she is aware has an interest in the recreational vessel.
(3)A notice served under subsection (1) must—
(a)specify the recreational vessel in respect of which an order is to be sought; and
(b)state that the Chief Commissioner of Police intends to make an application under section 62S for an impoundment or immobilisation order or a forfeiture order in relation to the recreational vessel if the operator is convicted of more than one of the relevant offences in respect of which the operator has been charged; and
(c)state that a person named in the notice may, if the Chief Commissioner makes the application, appear before the relevant court at the hearing of the application and show cause why the order should not be made; and
(d)state that the person on whom the notice is served must not sell or otherwise dispose of his or her interest in the recreational vessel without the approval of the relevant court.
(4)A person on whom a notice is served under subsection (1) must not, without the approval of the relevant court, before the application referred to in the notice is made and determined or, if an impoundment or immobilisation order or a forfeiture order is made, before the recreational vessel is seized under this Part, sell or otherwise dispose of any interest in the recreational vessel that is the subject of the notice.
Penalty:60 penalty units.
(5)Subsection (4) ceases to apply if—
(a)the operator is found not guilty of one or more relevant offences which results in the operator being subject to only one remaining charge for a relevant offence; or
(b)the Chief Commissioner of Police does not make the application referred to in the notice within 28 days after the operator is sentenced for the second or third relevant offence; or
(c)the charges for one or more of the relevant offences specified in the notice are withdrawn which results in the operator being subject to only one remaining charge for a relevant offence.
62WDirection not to transfer registration or register recreational vessel
(1)Within 7 days after service of a notice under section 62T(1) or 62V(1), the Chief Commissioner of Police must direct the Director—
(a)not to transfer the registration of the recreational vessel that is the subject of the notice from the registered person to another person; or
(b)not to register (other than by way of renewal) the recreational vessel that is the subject of the notice, unless the recreational vessel is to be registered in the name of the person who was the most recent registered person of that recreational vessel—
until the Chief Commissioner notifies the Director that the direction has ceased in accordance with subsection (3).
(2)Subsection (1) applies whether or not an actual application for transfer of registration or registration has been made.
(3)The Chief Commissioner of Police must notify the Director that the direction not to transfer registration or register under subsection (1) has ceased when any of the following occurs—
(a)if a notice is served under section 62T(1)—
(i)the operator is found not guilty of the relevant offence for which the application specified in the notice is made;
(ii)the Chief Commissioner of Police does not make the application referred to in the notice within 28 days after the operator is sentenced for a relevant offence;
(iii)the charge for the relevant offence specified in the notice is withdrawn and no other charge-sheet is filed charging for any other relevant offence arising out of the same single set of circumstances;
(b)if a notice is served under section 62V(1)—
(i)the operator is found not guilty of one or more relevant offences which results in the operator being subject to only one remaining charge for a relevant offence;
(ii)the Chief Commissioner of Police does not make the application referred to in the notice within 28 days after the operator is sentenced for the second or third relevant offence;
(iii)the charges for one or more of the relevant offences specified in the notice are withdrawn which results in the operator being subject to only one remaining charge for a relevant offence;
(c)the court hearing the application declines to make an impoundment or immobilisation order or a forfeiture order;
(d)the court sets aside an impoundment or immobilisation order or a forfeiture order under section 62ZA;
(e)an impoundment or immobilisation order or a forfeiture order is quashed, set aside on appeal or, as a result of a conviction for a relevant offence being set aside on appeal, the order ceases to have effect;
(f)the period of impoundment or immobilisation specified in an impoundment or immobilisation order ends;
(g)a forfeiture order becomes effective and a member of the police force or an authorised person takes possession of the recreational vessel that is the subject of the forfeiture order.
Note
Section 62ZB sets out when an order takes effect.
62XDirector not to transfer registration or register recreational vessel
(1)If directed by the Chief Commissioner of Police under section 62W, and until notified by the Chief Commissioner under that section that the direction has ceased, the Director must not—
(a)transfer the registration of the recreational vessel that is the subject of a notice served under section 62T(1) or 62V(1) from the registered person to another person; or
(b)register (other than by way of renewal) the recreational vessel that is the subject of a notice served under section 62T(1) or 62V(1), unless the recreational vessel is to be registered in the name of the person who was the most recent registered person of that recreational vessel.
(2)If the Chief Commissioner of Police gives a direction under section 62W(1) in respect of a recreational vessel, the Director must send to the registered person a notice advising that no transfer of registration will occur in relation to that recreational vessel until the Chief Commissioner gives notification under section 62W(3).
62YCessation of direction under this Act does not affect any suspension
The cessation of a direction not to transfer the registration of, or register, a recreational vessel under this Part does not affect the suspension of that registration under any other Act or law.
62ZHearing of application
(1)The relevant court hearing an application for an impoundment or immobilisation order or a forfeiture order—
(a)must allow any person served with a notice under section 62T(1) or 62V(1) to be heard at the hearing of the application and to show cause why an impoundment or immobilisation order or a forfeiture order should not be made; and
(b)may allow any other person to be heard if the court is satisfied that an impoundment or immobilisation order or a forfeiture order may substantially affect that person's interests.
(2)The court must not make an impoundment or immobilisation order or a forfeiture order if the owner or registered person of the recreational vessel that was used in the commission of the relevant offence can prove to the court's satisfaction that the relevant offence was committed without the knowledge or consent of the owner or registered person.
(3)The court may decline to make an impoundment or immobilisation order or a forfeiture order if the court is satisfied that such an order would cause exceptional hardship to any person.
(4)If the court makes an impoundment or immobilisation order, the Chief Commissioner of Police must notify the operator and the owner or registered person that if the recreational vessel is not collected or released within two months after the recreational vessel was impounded or immobilised the Chief Commissioner of Police may sell or otherwise dispose of the recreational vessel and any item or thing left in or on the recreational vessel.
Note
Section 62ZQ provides that the Chief Commissioner of Police must give 14 days notice of any intention to sell or dispose of a recreational vessel or item or thing left in or on the recreational vessel.
62ZAApplication for variation of order
(1)A person whose interests are substantially affected by an impoundment or immobilisation order or a forfeiture order may apply to the court that made the order for variation of the order if the applicant can demonstrate—
(a)that since the impoundment or immobilisation order or forfeiture order was made the applicant's circumstances have changed; and
(b)that the impoundment or immobilisation order or forfeiture order is causing, or will cause, exceptional hardship to the applicant or any other person.
(2)An application under subsection (1) to vary an impoundment or immobilisation order may be made at any time while the recreational vessel is impounded or immobilised.
(3)An application under subsection (1) to vary a forfeiture order may be made at any time while the recreational vessel is vested in the Crown.
(4)The court may make an order varying an impoundment or immobilisation order or a forfeiture order in any way, including, but not limited to—
(a)setting aside the impoundment or immobilisation order or forfeiture order; or
(b)reducing the amount of time that the recreational vessel is subject to impoundment or immobilisation.
62ZBWhen order takes effect
(1)An impoundment or immobilisation order or a forfeiture order becomes effective on—
(a)the expiration of the appeal period for the operator's conviction of the relevant offence; or
(b)the expiration of the appeal period for a sentencing order or sentence made following that conviction—
whichever is the later.
(2)If a conviction for a relevant offence is set aside on appeal, an impoundment or immobilisation order or a forfeiture order is of no effect.
(3)If a person convicted of a relevant offence applied for leave to appeal against the conviction for the relevant offence or the making of an impoundment or immobilisation order or a forfeiture order after the end of the relevant appeal period and such leave is granted, the appeal operates as a stay of the impoundment or immobilisation order or forfeiture order and any recreational vessel impounded or immobilised or otherwise in the possession of the Crown must be released to the owner or registered person.
(4)If a recreational vessel subject to a forfeiture order is no longer in the possession of the Crown and the conviction for the relevant offence, or the forfeiture order, is set aside on appeal, the Crown must pay to the appellant and any other person with an interest in the recreational vessel an amount commensurate with the value of the appellant's or other person's interest in the recreational vessel.
(5)Any amount to be paid under subsection (4) is to be paid out of the proceeds (if any) of the sale of the recreational vessel.
(6)A person with an interest in the recreational vessel may make an application to the Magistrates' Court for an order that compensation be paid in accordance with subsection (4) and the Court may make either or both of the following orders—
(a)an order that compensation be paid to that person commensurate with the value of the person's interest in the recreational vessel;
(b)an order that the costs incurred by the Crown in executing the forfeiture order may be retained by the Crown out of the proceeds of the sale of the recreational vessel.
62ZCPolice powers
A member of the police force acting under an impoundment or immobilisation order or a forfeiture order made under this Part has, and may exercise the same powers to seize the recreational vessel and impound or immobilise it as are specified in sections 62E(1) and (3) and 62G.
62ZDLiability for costs of impoundment or immobilisation
If a court makes an impoundment or immobilisation order, the recreational vessel must not be released from impoundment or immobilisation until the designated costs are paid by the person seeking to collect or release the recreational vessel.
62ZEOwnership rights
If a person is not the registered person of a recreational vessel, but can prove ownership of the recreational vessel to a court exercising powers under this Part, that person may make any application or exercise any right that a registered person may make or exercise under this Part.
62ZFThird party protection from forfeiture order
(1)A person, other than the operator, who did not appear at the hearing of an application for a forfeiture order and has an interest in the recreational vessel subject to a forfeiture order may apply to the court that made the forfeiture order for an order that—
(a)if ownership of the recreational vessel is vested in the Crown—
(i)ownership of the recreational vessel be transferred to the applicant, if the applicant had, immediately before the forfeiture order was made, full ownership of the recreational vessel; or
(ii)if the applicant had part ownership of the recreational vessel immediately before the forfeiture order was made, the recreational vessel be sold and the Crown pay to the applicant and any other person with an interest in the recreational vessel an amount commensurate with the value of his or her interest in the recreational vessel; or
(b)if the recreational vessel has been sold or otherwise disposed of, the Crown pay to the applicant an amount commensurate with the value of the applicant's interest in the recreational vessel.
(2)Leave of the court that made the forfeiture order is required to bring an application under subsection (1) if—
(a)the person was served with a notice of the application for a forfeiture order under section 62T(1) or 62V(1); or
(b)six months or more have elapsed since the date the forfeiture order was made.
(3)The court may only grant leave under subsection (2)(b) if it is satisfied that the delay in making the application was not due to the applicant's neglect.
(4)On an application under subsection (1), the court may make an order—
(a)declaring the nature, extent and, if necessary for the order, the value (at the time the declaration is made) of the applicant's interest in the recreational vessel immediately before the forfeiture order was made; and
(b)directing the Crown—
(i)if the recreational vessel is vested in the Crown and the applicant had full ownership of the recreational vessel immediately before the forfeiture order was made, to transfer ownership of the recreational vessel to the applicant; or
(ii)if the recreational vessel is no longer vested in the Crown, or if the applicant did not have full ownership of the recreational vessel immediately before the forfeiture order was made, to pay to the applicant the value of the applicant's interest in the recreational vessel.
(5)The court may only make an order under subsection (4) if it is satisfied that—
(a)the applicant would have, apart from the forfeiture order, a relevant interest in the recreational vessel; and
(b)the relevant offence occurred without the knowledge or consent of the applicant.
(6)Any amount to be paid under this section is to be paid out of the proceeds (if any) of the sale of the recreational vessel.
Division 4—Search and seizure warrants
62ZGApplication for search and seizure warrant
(1)A member of the police force may apply to a magistrate for a search and seizure warrant to be issued under this Division in respect of a recreational vessel if—
(a)the recreational vessel is subject to an impoundment or immobilisation order and has not been surrendered to a member of the police force; or
(b)the recreational vessel is subject to a forfeiture order and has not been surrendered to a member of the police force; or
(c)in accordance with section 62D, a member of the police force believes on reasonable grounds that the recreational vessel has been used in the commission of a relevant offence and the application is made within 48 hours after the alleged commission of the relevant offence; or
(d)a member of the police force is empowered under section 62F(6) to seize the recreational vessel.
(2)An application under this section may only be made if the applicant believes on reasonable grounds that the recreational vessel is, or may be within the next 72 hours, in or at a specified premises or place, including, but not limited to, a landing place.
(3)An application for a search and seizure warrant must be made in writing.
(4)A magistrate must not issue a search and seizure warrant unless—
(a)the application for the warrant sets out the grounds on which the warrant is sought; and
(b)the applicant has given the magistrate, either orally or in writing, any further information that the magistrate requires concerning the grounds on which the warrant is sought; and
(c)the information given by the applicant is verified before the magistrate on oath or affirmation or by affidavit.
62ZHSearch and seizure warrant
(1)A magistrate to whom an application is made under section 62ZG, if satisfied that there are reasonable grounds for believing the matters set out in the application, may issue a warrant to the person or persons named in the warrant to enter the specified premises or place and search for and seize the recreational vessel specified in the warrant.
(2)A warrant issued under subsection (1) may authorise the person or persons named in the warrant to—
(a)enter the premises or place specified in the warrant; and
(b)search for the recreational vessel specified in the warrant; and
(c)use reasonable force to break into or open any structure on or at the premises or place specified in the warrant that may store the recreational vessel specified in the warrant; and
(d)seize and impound or immobilise the recreational vessel specified in the warrant, using any or all of the powers specified in sections 62E(3) and 62G.
(3)A warrant issued under subsection (1) must—
(a)state the purpose for which the warrant is issued; and
(b)give a description of the recreational vessel authorised for seizure; and
(c)give the address or other description of the premises or place in respect of which the warrant is issued.
(4)Every warrant issued under this section must be in the prescribed form.
62ZIRecord of proceedings for search and seizure warrant
(1)A magistrate who issues a search and seizure warrant must cause a record to be made of all relevant particulars of the grounds he or she has relied on to justify the issue of the warrant.
(2)The magistrate may decline to record any matter that might disclose the identity of a person if the magistrate believes on reasonable grounds that to do so might jeopardise the safety of any person.
62ZJAnnouncement before entry
On executing a search and seizure warrant, the person executing the warrant must—
(a)announce that he or she is authorised by the warrant to enter the premises or place; and
(b)give any person at the premises or place an opportunity to allow entry to the premises or place before force is used to enter the premises or place.
62ZKCopy of search and seizure warrant to be given to occupier
A person executing a search and seizure warrant must—
(a)if the occupier is present at the premises or place where the warrant is being executed, identify himself or herself to the occupier and give the occupier a copy of the warrant; or
(b)if the occupier is not present at the premises or place where the warrant is being executed, identify himself or herself to any other person at the premises or place and give that person a copy of the warrant.
62ZLUse of assistants to execute search and seizure warrant
A person executing a search and seizure warrant may do so with the aid of any assistants that the person considers reasonably necessary to achieve the purpose for which the warrant was issued.
62ZMApplication of Magistrates' Court Act 1989
Except to the extent that a contrary intention appears in this Division, the provisions to be observed with respect to search warrants in the Magistrates' Court Act 1989 extend and apply to search and seizure warrants under this Division.
62ZNExpiry of search and seizure warrant
(1)A search and seizure warrant ceases to have effect if it is recalled and cancelled by the magistrate who issued it.
(2)If subsection (1) does not apply, a search and seizure warrant ceases to have effect—
(a)at the end of the period of one month after its issue; or
(b)when it is executed—
whichever occurs first.
62ZOReport on execution of search and seizure warrant
(1)The person to whom a search and seizure warrant is issued must give a report to the registrar of the Magistrates' Court—
(a)stating whether or not the warrant was executed; and
(b)if the warrant was executed, setting out briefly the result of the execution of the warrant; and
(c)if the warrant was not executed, setting out briefly the reasons why the warrant was not executed; and
(d)stating whether or not a copy of the warrant was given to the occupier or another person at the premises or place.
(2)A report must be—
(a)in the prescribed form; and
(b)made within 10 days after the expiry of the warrant.
(3)A person may apply to the Magistrates' Court for an order authorising the person to inspect the report given under subsection (1) if the person satisfies the Court that the person is—
(a)the owner or occupier of premises or place on which the warrant was executed; or
(b)a person who has an interest in the recreational vessel seized in the execution of the warrant.
62ZPObstruction or hindrance of person executing search and seizure warrant
A person must not, without reasonable excuse, obstruct or hinder a person executing a search and seizure warrant.
Penalty:60 penalty units.
Division 5—Disposal of recreational vessels
Subdivision 1—Disposal of recreational vessels, items and things
62ZQSale or disposal of uncollected recreational vessels and items
(1)Subject to subsection (2), the Chief Commissioner of Police may sell, by public auction or tender, or otherwise dispose of, a recreational vessel and any item or thing left in or on the recreational vessel, if—
(a)a decision is made by a member of the police force to impound or immobilise a recreational vessel under section 62D or an impoundment or immobilisation order is made against that recreational vessel; and
(b)the recreational vessel is not collected or released 2 months or more after the date on which the recreational vessel first became available for collection or release.
(2)The Chief Commissioner of Police must not sell or otherwise dispose of a recreational vessel or an item or thing left in or on a recreational vessel under subsection (1) unless—
(a)the matters referred to in subsection (3) are satisfied; or
(b)a disposal order has been made for the recreational vessel.
(3)For the purposes of subsection (2)(a), the matters that must be satisfied before the Chief Commissioner may sell or otherwise dispose of the recreational vessel or item or thing are—
(a)all proceedings in relation to the relevant offence that led to the impoundment or immobilisation of the recreational vessel have been finalised and any appeal period has expired; and
(b)at least 14 days before attempting to sell or otherwise dispose of the recreational vessel, item or thing, the Chief Commissioner serves notice on the operator, owner and registered person of the recreational vessel that the Chief Commissioner intends to sell or otherwise dispose of the recreational vessel, item or thing unless steps are taken to collect or release the recreational vessel, item or thing; and
(c)at least 14 days before attempting to sell or otherwise dispose of the recreational vessel, item or thing, the Chief Commissioner, by publishing a notice in a newspaper circulating generally in the State, notifies the public that the Chief Commissioner intends to sell or otherwise dispose of the recreational vessel and any item or thing left in or on the recreational vessel; and
(d)if the Chief Commissioner intends to sell or otherwise dispose of an item or thing left in or on the recreational vessel, all reasonable efforts have been made to return the item or thing to the person who has ownership in that item or thing.
Subdivision 2—Disposal of recreational vessels, items or things if forfeiture order has taken effect
62ZRSale or disposal of recreational vessel subject to forfeiture order
(1)The Chief Commissioner of Police may sell, by public auction or tender, or otherwise dispose of a recreational vessel that is the subject of a forfeiture order, and any uncollected item or thing left in or on the recreational vessel, once the forfeiture order takes effect in accordance with section 62ZB(1).
(2)The Chief Commissioner of Police must not sell or dispose of an item or thing left in or on a recreational vessel that is the subject of a forfeiture order unless all reasonable efforts have been made to return the item or thing to the person who has ownership of that item or thing.
62ZSApplication of proceeds of sale
Where a recreational vessel or item or thing is sold under section 62ZQ or 62ZR the proceeds of sale are to be applied in the following order of priority—
(a)to pay the costs of the sale;
(b)to pay any costs of impoundment or immobilisation;
(c)to discharge any security interest over the recreational vessel, such as a bank loan or a lease arrangement;
(d)to pay the owner or registered person of the recreational vessel if the recreational vessel was uncollected, or if the owner or registered person cannot be reasonably located, for payment into the Consolidated Fund;
(e)for payment into the Consolidated Fund.
Subdivision 3—Disposal of recreational vessels, items or things subject to disposal order
62ZTDisposal of recreational vessel, item or thing subject to disposal order
(1)The Chief Commissioner of Police may sell, by public auction or tender, or otherwise dispose of, a recreational vessel that is the subject of a disposal order and any item or thing left in or on the recreational vessel.
(2)The Chief Commissioner must not sell or dispose of an item or thing left in or on a recreational vessel that is the subject of a disposal order unless all reasonable efforts have been made to return the item or thing to the person who has ownership of that item or thing.
62ZUNotice to be given of intention to apply for disposal order
(1)The Chief Commissioner of Police may give notice of an application for a disposal order for a recreational vessel if—
(a)a decision is made by a member of the police force to impound or immobilise the recreational vessel under section 62D or an impoundment or immobilisation order is made against the recreational vessel; and
(b)the relevant court adjourns proceedings in relation to a relevant offence, other than to a fixed date, because the accused fails to appear; and
(c)a warrant is issued for the arrest of the accused; and
(d)the recreational vessel has not been collected, and the designated costs are not paid, within 2 months after the day the proceedings are adjourned.
(2)At least 28 days before making an application under subsection (1) the Chief Commissioner of Police must—
(a)serve notice of the intention to make the application on—
(i)the operator of the recreational vessel; and
(ii)if the operator of the recreational vessel is not the registered person of the recreational vessel, the registered person; and
(iii)if the owner of the recreational vessel is not a person referred to in subparagraph (i) or (ii), the owner; and
(iv)any person who the Chief Commissioner is aware has an interest in the recreational vessel; and
(v)the Director; and
(b)publish a notice in a newspaper circulating generally in the State, of the Chief Commissioner's intention to make the application.
(3)A notice under subsection (2) must state—
(a)that the Chief Commissioner intends to apply for an order to dispose of the recreational vessel unless the recreational vessel is collected and the designated costs paid within 28 days of the date the notice is served; and
(b)information that identifies the recreational vessel, including the recreational vessel's identification mark (if applicable); and
(c)that a person named in the notice may appear before the relevant court at the hearing of the application and show cause why the order should not be made; and
(d)any person on whom the notice is served must not sell or otherwise dispose of the person's interest in the recreational vessel without the approval of the relevant court.
62ZVApplication for disposal order
The Chief Commissioner of Police may apply to the court for an order to dispose of a recreational vessel if—
(a)the Chief Commissioner has served notice in respect of the recreational vessel in accordance with section 62ZU(2)(a); and
(b)within 28 days after the date the notice is served, the recreational vessel is not collected or the designated costs have not been paid.
62ZWHearing of application for and making of disposal order
(1)The relevant court hearing an application for a disposal order—
(a)must allow a person served with a notice under section 62ZU to be heard at the hearing of the application and to show cause why the disposal order should not be made; and
(b)may allow any other person to be heard if the court is satisfied the disposal order may substantially affect the person's interests.
(2)After hearing the application, the court may—
(a)make the disposal order; or
(b)decline to make the disposal order if the court is satisfied the order would cause exceptional hardship to a person.
(3)If the court makes the disposal order, the Crown becomes the owner of the recreational vessel.
62ZXApplication of proceeds of sale
(1)If a recreational vessel, item or thing is sold under a disposal order, the proceeds of the sale are to be applied in the following order of priority—
(a)to pay the costs of the disposal;
(b)to pay any costs of impoundment or immobilisation;
(c)to discharge any security interest over the recreational vessel, including a bank loan or lease arrangement.
(2)Any sum remaining after the proceeds of the sale are applied in accordance with subsection (1) is taken to be unclaimed money under the Unclaimed Money Act 2008 as if it were a sum of money legally payable to the person who had ownership of the recreational vessel immediately before the disposal order was made and as if the sum has remained unpaid for more than 12 months.
Division 6—Miscellaneous
62ZYService of notices under Part 7A
If under this Part a notice is required or permitted to be served on any person, the notice may, unless the contrary intention appears, be served—
(a)by delivering it personally to the person; or
(b)by leaving it at the usual or last known place of residence or business of the person with a person apparently over the age of 16 years and apparently residing at that place or (in the case of a business) apparently in charge of or employed at that place; or
(c)by sending it by post addressed to the person at the usual or last known place of residence or business of that person; or
(d)if the person has given to the Director as his or her address an address that is not his or her place of residence or business, by sending it addressed to the person at that address.
__________________".
6Exclusion orders
After section 85AT(2)(b) of the Marine Act 1988 insert—
"(ba)being a director, secretary or officer concerned in the management of a body corporate involved in managing infrastructure relating to the operation, storage, mooring, berthing or placement of vessels within the State; or".
7Insertion of new section 85ATA
After section 85AT of the Marine Act 1988 insert—
"85ATA Corporations displacement provision
Section 85AT is declared to be a Corporations legislation displacement provision for the purposes of section 5G of the Corporations Act in relation to the provisions of Chapter 2D of that Act.
Note
Section 5G of the Corporations Act provides that if a State law declares a provision of a State law to be a Corporations legislation displacement provision, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not apply to the extent necessary to avoid the inconsistency.".
(4)After section 92(3)(i) of the Road Safety Act 1986 insert—
"(iaa)if the Minister makes a declaration under section 92A in relation to exceptional circumstances, for the purposes of dealing with those exceptional circumstances in accordance with section 92B; or" .
(5)In section 92(3)(ca) of the Road Safety Act 1986, for "Public Transport Competition Act 1995" substitute "Bus Services Act 1995".
21New sections 92A and 92B inserted
After section 92 of the Road Safety Act 1986 insert—
"92A Minister may make declaration in exceptional circumstances
(1)The Minister, by notice published in the Government Gazette, may make a declaration under this section if the Minister is satisfied that—
(a)exceptional circumstances, whether in or outside Victoria, exist or have occurred that—
(i)endanger, or threaten to endanger, the life, health or safety of any person; or
(ii)destroy or damage, or threaten to destroy or damage, any property, the environment or part of the environment; and
(b)it is appropriate to disclose and use information that would otherwise be protected from disclosure or use by section 92 pending, during or following those exceptional circumstances.
Note
Events such as natural disasters, fires, explosions, accidents, unlawful acts (whether actual or threatened) and disruptions to essential services may be the basis for a declaration, if the requirements of subsection (1) are met.
(2)A declaration takes effect on the day of publication of the notice referred to in subsection (1) or any later date specified in the declaration.
(3)The Minister, by notice published in the Government Gazette, may revoke a declaration.
(4)A declaration ceases to have effect at the earliest of—
(a)if a time at which the declaration will cease to have effect is specified in the declaration, that time; or
(b)the time at which the declaration is revoked; or
(c)the expiry of 12 months after the declaration is made.
92BDisclosure of personal information in exceptional circumstances
(1)In this section—
permitted purpose means a purpose that directly relates to the State's response to exceptional circumstances in respect of which a declaration under section 92A is in force, including—
(a)identifying individuals who—
(i)are, or may be, injured, missing or dead as a result of the exceptional circumstances; or
(ii)are, or may be, otherwise involved in the exceptional circumstances;
(b)assisting individuals involved in the exceptional circumstances to obtain services such as government services, medical or other treatment, health services or financial or other humanitarian assistance;
(c)assisting with law enforcement in relation to the exceptional circumstances;
(d)coordination or management of the exceptional circumstances.
(2)At any time when a declaration under section 92A is in force in relation to exceptional circumstances, the Corporation may disclose or use information of a personal nature relating to an individual that would otherwise be protected from disclosure or use by section 92 if—
(a)the Corporation reasonably believes that the individual concerned may be involved in the exceptional circumstances; and
(b)the disclosure or use is for a permitted purpose in relation to the exceptional circumstances; and
(c)the disclosure is to an agency or organisation that—
(i)is, or is likely to be, involved in managing, or assisting in the management of, the exceptional circumstances; or
(ii)is directly involved in providing government services, medical or other treatment, health services or financial or other humanitarian assistance services to individuals involved in the exceptional circumstances; and
(d)the disclosure is not to a media organisation.".
22Exemptions from fatigue management requirements
(1)For section 191ZZ(1) of the Road Safety Act 1986 substitute—
"(1)A person who—
(a)is acting for an emergency service and who has time-critical duties on the way to, or during, an emergency; or
(b)is a driver for a rail replacement bus service and who is responding to a rail disruption; or
(c)is a driver for a bus service and who is responding to an emergency—
is exempted in the course of carrying out those duties from the prescribed provisions of this Act or the regulations.
Note
Other fatigue-related duties continue to apply.".
(2)For section 191ZZ(2) of the Road Safety Act 1986 substitute—
"(2)A person who is acting for an emergency service and who is returning from attending an emergency is exempted from the provisions of this Act or the regulations that are prescribed for the purposes of subsection (1) if non-compliance with those provisions does not present an unreasonable danger to other road users.".
(3)In section 191ZZ(3) of the Road Safety Act 1986—
(a)in paragraph (f) of the definition of emergency service, for "service." substitute "service;";
(b)insert the following definitions—
"rail disruption means the unplanned disruption of a rail service that is sufficiently serious to require the provision of a rail replacement bus service;
rail replacement bus service means a bus service (operated by an accredited person within the meaning of the Public Transport Competition Act 1995) which carries passengers of a disrupted rail service;
rail service means a train service or a tram service.".
(4)In section 191ZZ(3) of the Road Safety Act 1986, in the definition of rail replacement bus service, for "an accredited person within the meaning of the Public Transport Competition Act 1995" substitute "an accredited bus operator within the meaning of the Bus Safety Act 2009".
23Statute law revision
(1)In section 48(2)(d) of the Road Safety Act 1986, for "offence against" substitute "offence, against".
(2)In section 51(2) of the Road Safety Act 1986, for "charge" substitute "charge-sheet".
(3)In section 80(2) of the Road Safety Act 1986, for "traffic control signal" (wherever occurring) substitute "traffic signal".
__________________
Part 6—Amendment of the Road Management Act 2004
24Powers of a road authority
After the note at the foot of section 35(4) of the Road Management Act 2004 insert—
"(5)Despite subsection (4), if a road authority is prescribed for the purposes of section 37(2A) as the responsible road authority for road-related infrastructure, or a class of road-related infrastructure, on a road, or a class of road, a function or power that would otherwise be a function or power of a municipal council in relation to that road-related infrastructure under this Act or any other Act is subject to those regulations.".
25Responsible road authority
After the example at the foot of section 37(2) of the Road Management Act 2004 insert—
"(2A)Despite subsection (2), the regulations may provide that a prescribed road authority is the responsible road authority for prescribed road-related infrastructure, or a prescribed class of road-related infrastructure, on a prescribed road, or a prescribed class of road.".
26Removal of stationary vehicles
In section 119A(2) of the Road Management Act 2004—
(a)in paragraph (b), for "place." substitute "place; and";
(b)after paragraph (b) insert—
"(c)may store the vehicle.".
27Removal of abandoned property
(1)In section 119B of the Road Management Act 2004, after "remove" insert "or cause to be removed".
(2)At the end of section 119B of the Road Management Act 2004 insert—
"(2)VicRoads may recover from the owner of any thing removed under this section any reasonable costs incurred in removing it.".
28Regulations
(1)After section 132(2)(a) of the Road Management Act 2004 insert—
"(ab)removing or relocating from a road or other property owned or occupied by a road authority any thing that poses or may pose a risk to the safety of road users or the community;".
(2)After section 132(2)(n) of the Road Management Act 2004 insert—
"(na)controlling or removing vegetation, whether growing or dead, in a road reserve that may pose a risk to the safety of road users or the community;".
(3)After section 132(2)(t) of the Road Management Act 2004 insert—
"(ta)coordinating the use of a road reserve if 2 or more of any of the following have road management functions in relation to the road reserve—
(i)a road authority;
(ii)a utility;
(iii)a provider of public transport;
(iv)an infrastructure manager;
(v)a works manager;".
29Power to move other obstructions
At the end of clause 6 of Schedule 4 to the Road Management Act 2004 insert—
"(2)A State road authority may recover from the owner of any thing moved under subclause (1)(a) any reasonable costs incurred in moving it.".
__________________
Part 7—Amendment of the Melbourne City Link Act 1995
30Repeal
Section 87(3AA) of the Melbourne City Link Act 1995 is repealed.
31Statute law revision
In section 3 of the Melbourne City Link Act 1995—
(a)the definition of Council is repealed;
(b)insert the following definition—
"Council has the same meaning as in the Local Government Act 1989;".
__________________
Part 8—Amendment of the Accident Towing Services Act 2007
32Roster entitlements
In section 48 of the Accident Towing Services Act 2007, after "entitles the holder of the licence" insert ", subject to the regulations,".
33New sections inserted after section 140H
After section 140H of the Accident Towing Services Act 2007 insert—
"140I Offence not to carry permit when driving
(1)If the holder of a tow truck trainee permit is driving a tow truck or accompanying another person who is driving a tow truck in circumstances in which he or she is required under this Division to have a tow truck trainee permit, he or she must carry his or her permit.
Penalty:15 penalty units.
(2)If the holder of a tow truck trainee permit is driving a tow truck and another person is accompanying the holder of the permit in circumstances in which the other person is required under this Act, or under the conditions of the permit, to hold a tow truck driver accreditation, the other person must carry his or her certificate of accreditation.
Penalty:15 penalty units.
140JOffence not to produce permit when asked
(1)The holder of a tow truck trainee permit must produce his or her permit if—
(a)he or she is driving a tow truck or accompanying another person who is driving a tow truck in circumstances in which he or she is required under this Division to hold the permit; and
(b)he or she is asked to produce the permit by—
(i)an authorised officer; or
(ii)a member of the force; or
(iii)the owner or driver of an accident damaged motor vehicle that is being, or is about to be towed by the tow truck.
Penalty:15 penalty units.
(2)The holder of a tow truck driver accreditation must produce his or her certificate of accreditation if—
(a)the holder of the accreditation is accompanying the holder of a tow truck trainee permit who is driving a tow truck, in circumstances in which the holder of the accreditation is required under this Act or the conditions of the permit to hold the accreditation; and
(b)the holder of the accreditation is asked to produce the accreditation by—
(i)an authorised officer; or
(ii)a member of the force; or
(iii)the owner or driver of an accident damaged motor vehicle that is being, or is about to be towed by the tow truck.
Penalty:15 penalty units.".
34Direction to state name and address
In section 201(1) of the Accident Towing Services Act 2007, for "or licence" substitute
", a licence or a tow truck trainee permit".
35Regulation making powers
(1)In section 223(1)(d) of the Accident Towing Services Act 2007, after "but not limited to," insert "the inclusion of persons or refusal to include persons on the roster or".
(2)In section 223(2) of the Accident Towing Services Act 2007—
(a)in paragraph (f), for "as is specified." substitute "as is specified; and";
(b)after paragraph (f) insert—
"(g)may provide for fees to be payable in respect of tow truck licences, which may be payable annually.".
__________________
Part 9—Amendments relating to VicRoads
Division 1—Transport Act 1983
36Amendment of section 16—Objects and functions of Roads Corporation
In section 16(1)(g) of the Transport Act 1983 omit "in connection with transport".
Division 2—EastLink Project Act 2004
37Amendment of section 3—Definitions
In section 3(1) of the EastLink Project Act 2004 for the definition of Authority substitute—
"Authority means VicRoads;".
38New section 4A inserted
After section 4 of the EastLink Project Act 2004 insert—
"4AFunctions and powers of VicRoads
(1)For the purposes of this Act, VicRoads has the following functions—
(a)on behalf of the State, to administer and manage agreements and arrangements between the State and any other person for, or relating to, the development or delivery of the Project;
(b)to make recommendations regarding those agreements and arrangements to the Minister;
(c)to facilitate and coordinate consultations with statutory authorities and agencies of the State and other bodies or persons involved in, or affected by, the development or operation of the Project;
(d)to negotiate and enter into arrangements with statutory authorities and agencies of the State and other bodies or persons involved in, or affected by, the development or operation of the Project;
(e)to make recommendations to the Minister in relation to facilitating the Project and coordinating with statutory authorities, agencies of the State and other bodies or persons involved in, or affected by, the development or operation of the Project;
(f)to ensure that agreements and arrangements between the State and any other person for, or relating to, the development or delivery of the Project are performed in accordance with their terms;
(g)to manage the responsibilities of the State in relation to the operation of the Project;
(h)to make recommendations to the Minister on public safety issues relating to the Project;
(i)to manage, on behalf of the State, regulatory issues arising from the operation of the Project.
(2)VicRoads must comply with any directions given by the Minister, including any direction relating to the provision of information or reports concerning the exercise of its powers and the performance of its functions.".
39Consequential amendments
(1)In sections 1(c), 1(e), 35(b) and 47(2)(b) of the EastLink Project Act 2004 for "the Southern and Eastern Integrated Transport Authority" substitute "VicRoads".
(2)In section 44 of the EastLink Project Act 2004—
(a)subsection (2)(a) is repealed;
(b)in subsection (3) for "VicRoads or the" substitute "The".
(3)In section 81 of the EastLink Project Act 2004—
(a)subsection (2)(a) is repealed;
(b)in subsection (3) for "VicRoads or the" substitute "The".
40New Part 12 inserted
After Part 11 of the EastLink Project Act 2004 insert—
"Part 12Transfer of project from the southern and eastern Integrated Transport Authority to VicRoads—
260Definitions
In this Part—
instrument includes a document and an oral agreement;
liabilities means all liabilities, duties and obligations, whether actual, contingent or prospective;
property means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description;
rights means all rights, powers, privileges and immunities, whether actual, contingent or prospective;
Southern and Eastern Integrated Transport Authority means the Southern and Eastern Integrated Transport Authority established under the Southern and Eastern Integrated Transport Authority Act 2003;
transfer date means the date specified under section 261(2)(d) for the purposes of the transfer.
261Transfer of the Project
(1)The Southern and Eastern Integrated Transport Authority must give to the Minister within the period of 3 months after the date on which this Act receives the Royal Assent a statement or statements approved by the Minister relating to the property, rights and liabilities of the Southern and Eastern Integrated Transport Authority in relation to the Project at a date specified by the Minister for the purposes of the relevant statement.
(2)A statement under this section in relation to the Project—
(a)must allocate to VicRoads all the property, rights and liabilities of the Southern and Eastern Integrated Transport Authority which relate to the Project; and
(b)must be agreed to by the Chief Executive of VicRoads, and
(c)must be signed by the Chairperson of the Southern and Eastern Integrated Transport Authority and the Chief Executive of VicRoads; and
(d)must specify the transfer date on which the transfer is to take effect.
(3)If a statement under this section is approved by the Minister—
(a)the Minister must sign the statement; and
(b)the statement is an allocation statement for the purposes of this Part; and
(c)the Minister must cause the allocation statement to be published in the Government Gazette.
(4)The Minister may at any time direct the Southern and Eastern Integrated Transport Authority to amend a statement given to the Minister under this section as specified in the direction.
(5)An allocation statement under this section may be amended in writing signed by the Minister.
(6)If an allocation statement is amended under subsection (5), the amendments must be published in the Government Gazette .
(7)Nothing in this section affects or limits any approval, agreement or other authority that either the Southern and Eastern Integrated Transport Authority or VicRoads may require or need to obtain before it can be a party to the transfer.
(8)In this section, statement and allocation statement include a statement or allocation statement amended in accordance with this section.
Note
For the definition of Project see section 4.
262Property transferred to VicRoads
On the transfer date—
(a)all property and rights of the Southern and Eastern Integrated Transport Authority that are allocated to VicRoads under an allocation statement, vest in VicRoads; and
(b)all liabilities of the Southern and Eastern Integrated Transport Authority that are allocated to VicRoads under an allocation statement, become liabilities of VicRoads.
263Transfer subject to encumbrances
Unless an allocation statement under this Part otherwise provides, where, under this Part property and rights vest in VicRoads or liabilities become liabilities of VicRoads—
(a)the property and rights so vested are subject to the encumbrances (if any) to which they were subject immediately before so vesting; and
(b)the rights to which the Southern and Eastern Integrated Transport Authority was entitled in respect of those liabilities immediately before they ceased to be liabilities of the Southern and Eastern Integrated Transport Authority vest in VicRoads.
264Substitution of party to agreement
If, under an allocation statement, the rights and liabilities of the Southern and Eastern Integrated Transport Authority under an agreement are transferred to VicRoads—
(a)VicRoads becomes, on the transfer date, a party to the agreement in the place of the Southern and Eastern Integrated Transport Authority; and
(b)on and after the transfer date, the agreement has effect as if VicRoads had always been a party to the agreement.
265Instruments
Each Southern and Eastern Integrated Transport Authority instrument relating to property transferred to VicRoads under this Part continues to have effect according to its tenor on and after the transfer date as if a reference in the instrument to the Southern and Eastern Integrated Transport Authority were a reference to VicRoads.
266Proceedings
If, immediately before the transfer date, proceedings relating to property transferred to VicRoads (including arbitration proceedings) to which the Southern and Eastern Integrated Transport Authority was a party were pending or existing in any court or tribunal, then, on and after the transfer date, VicRoads is substituted for the Southern and Eastern Integrated Transport Authority as a party to the proceedings and has the same rights in the proceedings as the Southern and Eastern Integrated Transport Authority had.
267Interests in land
Without affecting the generality of this Part and despite anything to the contrary in any other Act (other than the Charter of Human Rights and Responsibilities) or law, if, immediately before the transfer date, the Southern and Eastern Integrated Transport Authority is, in relation to property transferred to VicRoads, the registered proprietor of an interest in land under the Transfer of Land Act 1958, then on and after the transfer date—
(a)VicRoads is deemed to be the registered proprietor of that interest in land; and
(b)VicRoads has the same rights and remedies in respect of that interest as the Southern and Eastern Integrated Transport Authority had.
268Action by Registrar of Titles
On being requested to do so and on delivery of any relevant instrument or document, the Registrar of Titles must make any recordings in the Register that are necessary because of the operation of this Part.
269Taxes
No stamp duty or other tax is chargeable under any Act in respect of anything done under this Part or in respect of any act or transaction connected with or necessary to be done by reason of the Part, including a transaction entered into or an instrument made, executed, lodged or given, for the purpose of, or connected with the transfer of property, rights or liabilities under an allocation statement.
270Evidence
Documentary or other evidence that would have been admissible for or against the interests of the Southern and Eastern Integrated Transport Authority in relation to property transferred to VicRoads is admissible for or against the interests of VicRoads.
271Transfer of employees
(1)This section applies to an employee who is not employed under Part 3 of the Public Administration Act 2004.
(2)If as a result of an allocation statement it is necessary to transfer any employees from the Southern and Eastern Integrated Transport Authority to VicRoads, the Secretary to the Department of Transport must list in writing the persons who were employed by the Southern and Eastern Integrated Transport Authority before the transfer date and who are to be transferred to VicRoads.
(3)An employee transferred under this section is to be regarded as—
(a)being employed by VicRoads with effect from the transfer date;
(b)having been so employed on the same terms and conditions as those that applied to the person immediately before the transfer date;
(c)having accrued an entitlement to benefits in connection with that employment that is equivalent to the entitlement that the person had accrued immediately before the transfer date.
(4)The service of an employee transferred under this section is to be regarded for all purposes as having been continuous with the service of the employee immediately before the transfer date.
(5)An employee transferred under this section is not entitled to receive any payment or other benefit by reason only of having ceased to be employed by the Southern and Eastern Integrated Transport Authority because of the operation of this Part.
(6)A certificate purporting to be signed by the Secretary to the Department of Transport certifying that a person named in the certificate was, with effect from the transfer date, employed by virtue of this section by VicRoads, is admissible in evidence in any proceedings as evidence of the matters stated in it.
(7)The superannuation entitlements of any person who is transferred under this section are to be taken not to be affected by that person being transferred.
(8)Nothing in this section prevents—
(a)any of the terms and conditions of employment of a person transferred under this section from being altered by or under any law, award or agreement with effect from any time after the transfer date;
(b)a person transferred under this section from resigning or being dismissed at any time after the transfer date in accordance with the then existing terms and conditions of his or her employment with VicRoads.
272Validity of things done under this Part
Nothing effected by, or done or suffered under, this Part—
(a)is to be regarded as placing any person in breach of contract or confidence or as otherwise making any person guilty of a civil wrong; or
(b)is to be regarded as placing any person in breach of or as constituting a default under any Act (other than the Charter of Human Rights and Responsibilities) or other law or any provision in any agreement, arrangement or understanding including, without limiting the generality of the foregoing, any provision prohibiting, restricting or regulating the assignment or transfer of any property or the disclosure of any information; or
(c)is to be regarded as fulfilling any condition which allows a person to exercise a right or remedy in respect of or to terminate any agreement or obligation; or
(d)is to be regarded as giving rise to any remedy for a party to a contract or an instrument or as causing or permitting the termination of any contract or instrument because of a change in the beneficial or legal ownership of any asset, right or liability; or
(e)is to be regarded as causing any contract or instrument to be void or otherwise unenforceable; or
(f)is to be regarded as frustrating any contract; or
(g)releases any surety or other obligee wholly or in part from any obligation.
__________________".
Division 3—Southern and Eastern Integrated Transport Authority Act 2003
41Amendment of section 3—Definitions
In section 3 of the Southern and Eastern Integrated Transport Authority Act 2003—
(a)the definition of EastLink Project is repealed;
(b)for the definition of Project substitute—
"Project means a Road Transport-Related Project;".
42Repeal of section 4—The EastLink Project
Section 4 of the Southern and Eastern Integrated Transport Authority Act 2003 is repealed.
__________________
Part 10—Amendment of the Major Transport Projects Facilitation Act 2009
43Statute law revision
(1)In section 3 of the Major Transport Projects Facilitation Act 2009, in the definition of rail infrastructure, for "At" substitute "Act".
(2)In section 10(1)(b) of the Major Transport Projects Facilitation Act 2009, for "Part" substitute "Parts".
(3)In section 57(1)(a) of the Major Transport Projects Facilitation Act 2009, after "relation" insert "to".
(4)In section 57(3)(b) of the Major Transport Projects Facilitation Act 2009, for "35(1)(b)" substitute "35(b)".
(5)In section 88(2)(b) of the Major Transport Projects Facilitation Act 2009, for "sections" substitute "section".
(6)In section 95(1) of the Major Transport Projects Facilitation Act 2009—
(a)omit "the Planning Minister"; and
(b)for paragraphs (a) and (b) substitute—
"(a)the Governor in Council declares a transport project to be a declared project to which this Act (other than Parts 3 and 8) applies; or
(b)the Planning Minister makes an approval decision in relation to a declared project.".
(7)For section 95(2)(a) of the Major Transport Projects Facilitation Act 2009 substitute—
"(a)in the case where the Governor in Council declares a transport project to be a declared project to which this Act (other than Parts 3 and 8) applies—the declared project to which that declaration relates;".
(8)In section 114(a) of the Major Transport Projects Facilitation Act 2009, for "and" substitute "or".
(9)In section 115(1) of the Major Transport Projects Facilitation Act 2009, for "113" substitute "114".
(10)In section 167(3)(b) of the Major Transport Projects Facilitation Act 2009, after "Act" insert "1978".
(11)In section 234(8)(b) of the Major Transport Projects Facilitation Act 2009 omit "be".
(12)In Schedule 2 to the Major Transport Projects Facilitation Act 2009, for "Section 262" substitute "Section 264".
__________________
Part 11—Amendment of the Crimes Act 1958
44New section 317B inserted
After the heading to Division 9 of Part I of the Crimes Act 1958 insert—
"317B Interpretation
(1)In this Division—
drive, in relation to a motor vehicle, includes operate a vessel;
motor vehicle includes vessel, whether or not the vessel is powered by a motor;
operate, in relation to a vessel, means—
(a)steer or navigate the vessel; or
(b)direct the steering or navigation of the vessel or provide instructions as to the steering or navigation of the vessel; or
(c)substantially change the movement or direction of the vessel;
vessel has the same meaning as in the Marine Act 1988.
(2)For the purposes of this Division—
(a)a person may operate a vessel that is at anchor, made fast to the shore or aground;
(b)a person does not operate a vessel solely because the person is in charge of the vessel.".
45Culpable driving causing death
In section 318(6) of the Crimes Act 1958, after "Road Safety Act 1986" insert "or the Marine Act 1988".
46New section 615 inserted in Crimes Act 1958
At the end of Part 7 of the Crimes Act 1958 insert—
"615 Transitional provision—Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009
(1)Division 9 of Part I as amended by sections 44 and 45 of the Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009 applies only to offences alleged to have been committed on or after the commencement of sections 44 and 45 of that Act.
(2)For the purposes of this section, if an offence is alleged to have been committed between two dates, one before and one after the commencement of sections 44 and 45 of the Transport Legislation Amendment (Hoon Boating and Other Amendments) Act 2009, the offence is alleged to have been committed before that commencement.".
47Evidentiary provisions in Marine Act 1988
(1)In section 27(2) of the Marine Act 1988—
(a)in paragraph (d), for "corresponding law—" substitute "corresponding law; or"; and
(b)after paragraph (d) insert—
"(e)an offence against section 318(1) of the Crimes Act 1958 (whether in relation to a motor vehicle or a vessel) where the culpable driving is constituted by behaviour referred to in section 318(2)(c) or (d) of that Act—".
(2)In sections 32(2) and 33(1) of the Marine Act 1988, after "section 28(1)" insert "or on a trial or hearing for an offence against section 318(1) or 319(1) of the Crimes Act 1958 arising out of the operating of a vessel".
48Cancellation of operator licence under Marine Act 1988
(1)In section 121(1) of the Marine Act 1988, for "If a court" substitute "Subject to subsection (1A), if a court".
(2)After section 121(1) of the Marine Act 1988 insert—
"(1A)On conviction for an offence against section 318(1), 319(1) or 319(1A) of the Crimes Act 1958 in connection with the operating of a vessel, the court must—
(a)in the case of an offender who holds an operator licence, cancel that licence and disqualify the offender from obtaining an operator licence for the time (not being less than 6 months) that the court thinks fit; or
(b)in the case of an offender who does not hold an operator licence, disqualify the offender from obtaining an operator licence for the time (not being less than 6 months) that the court thinks fit.".
(3)In section 121(3) and (4) of the Marine Act 1988, after "(1)" insert "or (1A)".
49Consequential amendments
(1)In section 89(1)(c) and (d) of the Sentencing Act 1991, after "1958" insert "arising out of the driving of a motor vehicle (other than the operating of a vessel) by the offender".
(2)In the Road Safety Act 1986—
(a)in section 48(2)(f), after "1958" insert "(whether in relation to a motor vehicle or a vessel)";
(b)in section 57(2)(b), after "1958" insert "arising out of the driving of a motor vehicle but not the operating of a vessel";
(c)in section 57A(1), in paragraph (c) of the definition of prescribed legal proceeding, after "1958" insert "arising out of the driving of a motor vehicle but not the operating of a vessel";
(d)in section 57B(2)(c), after "1958" insert "arising out of the driving of a motor vehicle but not the operating of a vessel";
(e)in section 58(1)(b), after "1958" insert "arising out of the driving of a motor vehicle but not the operating of a vessel".
(3)In section 3(1) of the Bus Safety Act 2009—
(a)in the definition of tier 1 offence, in paragraph (f), after "1958" insert "(whether in relation to a motor vehicle or a vessel)";
(b)in the definition of tier 2 offence, in paragraphs (d) and (e), after "1958" insert "(whether in relation to a motor vehicle or a vessel)".
(4)In the Transport Act 1983—
(a)in section 86(1)—
(i)in the definition of category 1 offence, in paragraph (cb), after "1958" insert "(whether in relation to a motor vehicle or a vessel)";
(ii)in the definition of category 2 offence, in paragraphs (cd) and (ce), after "1958" insert "(whether in relation to a motor vehicle or a vessel)";
(b)in section 130A(1)—
(i)in the definition of tier 1 offence, in paragraph (cb), after "1958" insert "(whether in relation to a motor vehicle or a vessel)";
(ii)in the definition of tier 2 offence, in paragraphs (bb) and (bc), after "1958" insert "(whether in relation to a motor vehicle or a vessel)";
(c)in section 132E(c), after "1958" insert "(whether in relation to a motor vehicle or a vessel)".
(5)In section 82(4A)(a) of the Accident Compensation Act 1985 omit ", in respect of driving a motor vehicle,".
__________________
Part 12—Repeal
50Repeal of Act
This Act is repealed on 1 January 2012.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
═══════════════
Endnotes
Minister's second reading speech—
Legislative Assembly: 11 November 2009
Legislative Council: 27 November 2009
The long title for the Bill for this Act was "A Bill for an Act to amend the Accident Towing Services Act 2007, the Crimes Act 1958, the EastLink Project Act 2004, the Major Transport Projects Facilitation Act 2009, the Marine Act 1988, the Melbourne City Link Act 1995, the Port Services Act 1995, the Road Management Act 2004, the Road Safety Act 1986, the Southern and Eastern Integrated Transport Authority Act 2003 and the Transport Act 1983 and for other purposes."
0
0
0