Wednesday, 30 October 2019

Transport Legislation Amendment Bill 2019

Statement of compatibility

Ms ALLAN (Bendigo East—Leader of the House, Minister for Transport Infrastructure) (10:41): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Transport Legislation Amendment Bill 2019.

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (Charter), I make this Statement of Compatibility with respect to the Transport Legislation Amendment Bill 2019 (Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill amends the Transport Integration Act 2010 (and makes consequential amendments to other Acts) to modernise the objects, powers and functions of transport bodies in Victoria. The Bill also amends the Road Safety Act 1986 to provide for the deregistration of vehicles with offensive slogans that are not removed as directed and the deployment of vehicle immobilisation devices to promote public safety.

Human Rights Issues

Restructure of the transport portfolio

The Bill provides for the consolidation of Public Transport Victoria and VicRoads into the Department of Transport, the abolition of the Linking Melbourne Authority, and the reallocation of functions and powers between the Secretary to the Department of Transport and the reconstituted office of the Head, Transport for Victoria. This integration and reallocation is effected through a combination of legislative and administrative instruments, including the use of transport restructuring orders and transfer orders under the Transport Integration Act 2010, the delegation of various functions and powers, and the use of orders for the transfer of employees.

The Bill makes various amendments to existing statutory powers of transport bodies. Some of these powers, including powers relating to compulsory acquisition of land, rights of entry to land, and information sharing, as well as certificate evidence deeming provisions, are relevant to human rights (namely, rights to privacy, property and presumption of innocence). However, in my view, and consistent with previous Statements of Compatibility that have discussed these powers in detail (the Transport Integration Bill 2010, the Transport Integration Amendment (Head, Transport for Victoria and Other Governance Reforms) Bill 2017 and West Gate Tunnel (Truck Bans and Traffic Management) Act 2019), none of these provisions limit human rights. Further, this Bill transfers or reallocates the relevant powers between persons and bodies; it does not expand their scope or alter the purposes for which the powers can be exercised. Accordingly, these amendments do not create any new, or expand any existing, interferences with human rights. In my view, these provisions therefore remain compatible with the Charter and do not require detailed consideration in this Statement.

Vehicle immobilising devices

Section 63B of the Road Safety Act 1986 permits authorised police officers to use a vehicle immobilising device to stop a vehicle in connection with a pursuit, or to prevent a vehicle being used to escape lawful custody or avoid arrest. Clause 114 of the Bill amends section 63B to allow a vehicle immobilising device to be used to stop a vehicle from entering a place on or near a road at which there is a public gathering or a ‘non-road activity’ within the meaning of the Road Safety Act (such as the use of a road for the shooting of a film, a street festival or a bicycle event).

The right to freedom of movement in section 12 of the Charter provides that every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live. Clause 114 may limit the right to freedom of movement by preventing a person from travelling freely in their vehicle in certain areas. However, in my view, any such limitation will be reasonable and demonstrably justified having regard to the factors in section 7(2) of the Charter. The power is intended to be used in limited circumstances where non-compliance with a direction to stop is reasonably anticipated and in order to protect the safety of the public. Accordingly, I consider that the power is proportionate to the important purpose of protecting the public and that there are no less restrictive means reasonably available to respond to an immediate threat posed by a vehicle. Further, under section 38 of the Charter, the power must be exercised by police officers in a manner that is compatible with human rights. For these reasons, I consider that clause 114 is compatible with the right to freedom of movement in the Charter.

Cancellation of registration for offensive advertisements

Clause 119 inserts Division 2A of Part 2 into the Road Safety Act 1986 to provide that the Secretary may cancel the registration of a motor vehicle or trailer if a board appointed by Ad Standards determines that an advertisement on the vehicle (including a slogan in advertising on a vehicle) is in breach of the advertising code and no action has been taken by the registered operator of the vehicle. Prior to cancelling the vehicle’s registration, the Secretary must send a registration cancellation notice to the registered operator of the vehicle and give them at least 14 days to modify or remove the advertisement.

Requiring a person to remove an advertisement on a vehicle or trailer will engage the right to freedom of expression in section 15 of the Charter, which provides that every person has the right to hold an opinion without interference, and to seek, receive and impart information and ideas of all kinds. In my view, any restriction on the freedom of expression occasioned by Division 2A of Part 2 will be a lawful restriction reasonably necessary to respect the rights and reputation of other persons, or for the protection of public order or public morality. Accordingly, the provisions will either fall within section 15(3) of the Charter as a special duty or responsibility that is attached to the right, or will be reasonable and justified under section 7(2) of the Charter. Advertisements to which this provision applies will be those determined to fall below prevailing community standards as enshrined in the advertising code, which prohibits advertising that employs sexual appeal in an exploitative or degrading manner, uses strong or obscene language, or discriminates against or vilifies a section of the community on account of race, ethnicity, nationality, gender, age, sexual preference, religion, disability, mental illness or political belief. Further, in balancing a person’s right to freedom of expression against other rights and public morality, commercial expression is generally treated as of less significance than political or artistic expression.

For these reasons, I consider that new Division 2A of Part 2 is compatible with the right to freedom of expression.

Use and disclosure of information under the Road Safety Act

Clause 123 expands the categories of ‘relevant information’ that may be used or disclosed by the Secretary or a relevant person under section 90K of the Road Safety Act 1986 to include information that is collected or received by the Secretary in relation to the accessible parking permit scheme. Clause 124 extends the circumstances in which the Secretary or a relevant person may use or disclose relevant information to include administering the accessible parking permit scheme. This involves facilitating the issue of parking permits for people with disabilities, facilitating the assessment of whether a person is entitled to such a permit and maintaining a record of persons who have been issued with such a permit. To the extent that this involves using or disclosing information of a personal nature, it may engage the right to privacy under the Charter.

Section 13 of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. The ability to use or disclose information collected in relation to the accessible parking permit scheme is essential for the effective administration of that scheme and to ensure the Secretary, municipal councils and law enforcement can fulfil their statutory functions. I note that relevant information must not be disclosed to a person or body for the purpose of administering the accessible parking permit scheme unless the recipient of the information has first entered into an information protection agreement with the Secretary under section 90N of the Road Safety Act 1986. I consider that the provisions are appropriately confined such that they will be lawful and not arbitrary, and will accordingly be compatible with the right to privacy under the Charter.

Hon Jacinta Allan MP

Transport Infrastructure

Second reading

Ms ALLAN (Bendigo East—Leader of the House, Minister for Transport Infrastructure) (10:41): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

Road Safety Act amendments

This Bill will introduce measures to address offensive advertising on vehicles. Vehicles that display offensive, sexist or obscene slogans such as the Wicked campervans have no place on Victorian roads. The government has been working closely with other states and territories to develop a national approach to the issue. This amendment is consistent with laws already in operation in Queensland and Tasmania. The Secretary to the Department of Transport will now be able to cancel a vehicle’s registration if our national advertising industry’s complaints resolution body determines that the vehicle breaches the advertising standards Code of Ethics. The Secretary will also be able to refuse to register a vehicle that has had its registration suspended or cancelled in another state or territory for the same or similar reasons. There is no place for sexism in our state and there will be no place for sexism on Victorian roads.

This Bill will enable the pre-emptive deployment of vehicle immobilisation devices by police to protect large crowds or gatherings of people that may be subject to danger from vehicles. This amendment also implements the Government’s commitment reflected in the Community Safety Statement to expand the use of vehicle immobilisation devices.

The Bill enables the transfer of staff to the National Heavy Vehicle Regulator. This completes the implementation of national heavy vehicle regulation by transferring compliance capabilities to the National Heavy Vehicle Regulator. The Bill ensures that the transferred Transport Safety Services officers are still appointed as Authorised Officers under Victorian law to carry out enforcement activities.

The Bill will provide the Secretary with powers to collect, use and disclose information for the purposes of a central permit scheme for accessible parking permits. However, the Bill makes clear that the Secretary cannot use or disclose the information obtained for the purposes of the scheme for other purposes.

The Bill makes a number of other administrative amendments to the Road Safety Act, including:

• clarifying powers of the registration authority to set training requirements for the granting of a driver licence;

• resolving inconsistencies and operational issues with provisions in the Act relating to the Behaviour Change Program;

• changing the definition of accompanying driver to supervising driver to reflect other changes and clarifying supervising driver offences;

• applying zero BAC to interstate drivers that have a zero condition in that other jurisdiction; and

• clarifying some 3-year novice motor cycle rider requirements.

Other road-related amendments

The Bill makes a number of amendments to other Acts, including:

• the Road Management Act 2004, to make it optional for the Minister to increase the property damage threshold in a financial year, rather than being automatically indexed each year. This can prevent automatic threshold increases so road users are not prohibited from claiming damages; and

• the Accident Towing Services Act 2007, to require certain application fees to be specified in regulations rather than by notice in the Government Gazette.

Organisational changes in the transport portfolio

While the Government has an ambitious investment program, meeting the needs and expectations of transport system users in the future will also require optimising the use of current assets. This will be done through both better integration of network services, as well as adoption of technology and new business models to get more out of the State’s existing assets.

Greater integration of modal networks, user experience and information into one transport system will ensure better alignment throughout the ‘transport development lifecycle’, from planning and policy development right through to asset build and operational management.

This Bill gives legislative effect to the consolidation of the Department of Transport (DoT), the Public Transport Development Authority (PTV) and the Roads Corporation (VicRoads) under a new operating model whereby all functions are transferred from PTV and VicRoads to DoT.

This will ensure a greater focus on people—by integrating transport services and information and better managing disruptions to the transport system, particularly during the Big Build. It will provide for a simpler operating model and governance—delivering better decision-making and avoiding unnecessary duplication to improve project delivery. Duplication will be reduced to improve financial sustainability and will allow more efficient operations by improving role clarity and accountabilities.

Under the Bill, the Secretary will take over strategic policy and legislative functions in relation to the transport system from the Head, Transport for Victoria (TfV). The Secretary will also assume strategic planning functions for all forms of transport and responsibility for improving the safety of the road system.

The Head, TfV will be responsible for consolidated operational responsibilities across the road and public transport networks, including being the road authority for arterial roads. The Head, TfV also takes on responsibility for managing the provision of information about public transport services, fares and timetables. The Bill will constitute the Head, TfV as a body corporate. This will facilitate the performance of the operational range of functions the Head, TFV is taking on.

The Bill provides for the abolition PTV and VicRoads and makes necessary consequential amendments to other statutes. Interim arrangements for VicRoads are provided for in the Bill whereby VicRoads has a support function to the Secretary in relation to registration, licensing and accreditation services.

The Bill also abolishes the Transport Infrastructure Development Agent and Linking Melbourne Authority.

The Bill clarifies that the Transport Restructuring Orders can apply to any transport legislation, not just the Transport Integration Act 2010. It was not the original intention to limit the operation of Transport Restructuring Orders to functions derived from the Transport Integration Act 2010 itself.

Conclusion

This Bill aims to make a range of changes to road-related legislation, as well as completing the legal consolidation of the transport portfolio.

I commend the Bill to the house.

Ms McLEISH (Eildon) (10:42): I move:

That the debate be now adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for 13 days. Debate adjourned until Tuesday, 12 November.