Thursday, 7 April 2022
Bills
Road Safety Legislation Amendment Bill 2022
Road Safety Legislation Amendment Bill 2022
Introduction and first reading
The PRESIDENT (18:12): I have a message from the Assembly:
The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Road Safety Act 1986 and the Transport Accident Act 1986 and for other purposes’.
That the bill be now read a first time.
Motion agreed to.
Read first time.
Ms PULFORD: I move, by leave:
That the second reading be taken forthwith.
Motion agreed to.
Statement of compatibility
Ms PULFORD (Western Victoria—Minister for Employment, Minister for Innovation, Medical Research and the Digital Economy, Minister for Small Business, Minister for Resources) (18:13): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
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 Road Safety Legislation Amendment Bill 2022 (the Bill).
In my opinion, the Bill, as introduced to the Legislative Council, is compatible with human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.
Overview of the Bill
The Bill makes miscellaneous amendments to the Transport Accident Act 1986 (TAA) and to the Road Safety Act 1986 (RSA).
The amendments to the TAA make a number of changes in relation to the payment of benefits under the Act.
The amendments to the RSA are principally intended to support the implementation of new road safety camera technology to detect distracted driver and seatbelt offences, and to expand the circumstances which enliven the power to suspend driver licences and learner permits or to disqualify drivers from obtaining them.
Human rights issues
The amendments to the TAA which may engage rights protected under the Charter include expansion of the circumstances in which the Transport Accident Commission (Commission) is not liable to pay compensation, the requirement for indemnified persons to give notice of an accident to the Commission, and empowerment of the Commission to commence prosecutions for a broader range of offences.
The amendments to the RSA which may engage Charter rights include the imposition of an evidential burden in relation to evidence from road safety cameras, and expansion of the types of offences for which an accused may be suspended or disqualified from driving.
Right to equality
Section 8(3) of the Charter provides that every person is entitled to equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. The purpose of this component of the right to equality is to ensure that all laws and policies are applied equally, and do not have a discriminatory effect.
‘Discrimination’ under the Charter incorporates the definition in the Equal Opportunity Act 2010. Direct discrimination occurs where a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute. Indirect discrimination occurs where a person imposes a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with a protected attribute, but only where that requirement, condition or practice is not reasonable.
Evidence indicated by prescribed road safety cameras is, absent evidence to the contrary, proof of certain facts
Clause 3 of the Bill enacts new provisions into the RSA. These provisions create a presumption that, without prejudice to any other mode of proof and in the absence of evidence to the contrary, evidence indicated by an image or message produced by a prescribed road safety camera, or a prescribed process used in a prescribed manner, is proof of a relevant fact. Relevant facts include the touching of a portable device by a driver and failure to wear a seatbelt.
This clause is relevant to the right to equality as the presumption may disadvantage persons with a disability (a protected attribute in section 6 of the Equal Opportunity Act 2010) who have a medical exemption from the requirement to wear a seatbelt pursuant to rule 267 of the Road Safety Road Rules 2017. The potential disadvantage would result from the fact that such a person is more likely to be served with an infringement notice for failure to wear a seatbelt and to elect to have the offence heard and determined in court. Therefore, the evidential presumptions introduced by clause 3 are more likely to be engaged.
However, in my view, clause 3 of the Bill does not result in indirect discrimination and is not incompatible with the Charter right to equality. The relevant evidential presumptions only establish that prescribed road safety camera evidence is (absent evidence to the contrary) proof of a ‘relevant fact’ on a ‘relevant occasion’. The relevant fact is that the accused was not, while the vehicle was moving or stationary but not parked, wearing a seatbelt for the relevant seating position in a properly adjusted and fastened manner (new sections 80C(1), 80D(1)). A person with a medical exemption would not be expected to rebut the presumption that they were not wearing a seatbelt. Rather, they would raise a defence to the offence on the basis of the medical exemption. Accordingly, any disadvantage suffered by an accused person with a disability does not flow from clause 3 of the Bill.
In addition, a number of reasonable safeguards mitigate any disadvantage caused to a person with a disability, who has a medical exemption from the requirement to wear a seatbelt, as a result of the issuance of an infringement notice for a seatbelt-related offence. The Department of Justice and Community Safety is developing a process that will enable persons who have received an infringement notice to lodge evidence of a medical exemption online, which will then allow the infringement notice to be cancelled administratively. And, if an accused person elects to challenge an infringement notice in court, clause 5 of the Bill enacts a new provision in the RSA which requires the accused to give written notice of a medical exemption to the Chief Commissioner of Police 28 days before the hearing of the charge. The notice requirement facilitates the ability of the Chief Commissioner to withdraw a charge before trial.
Right to privacy
Section 13(a) of the Charter provides that a person has the right not to have their privacy unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed. It will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.
Indemnified person to give notice to Commission
Clause 35 of the Bill substitutes three new subsections for subsection 99(1) of the TAA. New subsection (1) requires an indemnified person (defined in relation to section 94 of the TAA) to notify the Commission in writing of the fact of a transport accident resulting in death or injury. The notice must include particulars as to the date, nature, and circumstances of the accident. The indemnified person must also provide the Commission any other information, and take any steps, the Commission may reasonably require to perform its functions under the TAA.
This amendment does not, in my opinion, limit the right to privacy in section 13(a) of the Charter, because any interference with an indemnified person’s privacy is neither unlawful nor arbitrary. The nature of the information which a person must provide to the Commission is confined to what is ‘reasonably’ required to facilitate the Commission’s provision of indemnification in relation to liability for damages for a transport accident.
Moreover, the purpose of the notice requirement is to facilitate access to a benefit (namely, indemnification for civil liability) under the TAA. Failure to provide notice simply gives rise to a right for the Commission to recover, from the indemnified person, an amount in damages that is reasonably attributable to the failure (section 99(4)). The provision of information by an indemnified person to the Commission is therefore voluntary.
Secrecy provision substituted for section 131 of the TAA
Clause 38 of the Bill substitutes a new secrecy provision for section 131 of the TAA. The new provision prohibits a specified person (as defined) from making a record of, disclosing, or using ‘restricted information’ unless an exemption applies. ‘Restricted information’ is defined to mean information that ‘identifies or could lead to the identification of any person’ and ‘that is or was acquired by the person by reason of being or having been a specified person.’
Section 131(3) permits disclosure where the person to whom the information relates consents, or where it is in the public domain. In these circumstances, it is my view that the privacy right will not be limited as there is no reasonable expectation of privacy in that information.
To the extent that clause 38 may interfere with the right to privacy by authorising disclosure of personal information in the circumstances specified in subsections 131(2) and (4), any such interference will be lawful and will not be arbitrary.
Section 131(2) permits a specified person to disclose restricted information to ‘a person’ for the purpose of performing a function or duty under the TAA, where authorised to do so under another Act or law, or in connection with legal proceedings. Section 131(4) permits disclosure (where authorised by the Commission) to certain entities, such as insurers or regulatory bodies, in prescribed situations. Disclosure in those situations is for legitimate purposes reasonably connected to the TAA scheme, including to combat fraud or where necessary to prevent a serious threat to health or safety. Provided disclosure is made in accordance with these criteria, any interference with privacy will be lawful and not arbitrary.
Moreover, to the extent that the Commission and a ‘specified person’ are public authorities under the Charter, they must give proper consideration to, and act compatibly with, human rights in making decisions to disclose (or to authorise disclosure of) restricted information (section 38(1) of the Charter). This will oblige the Commission and specified persons to ensure that the extent of disclosure is proportionate to the purpose for disclosure in any given case. The Commission is also bound by the Privacy and Data Protection Act 2014 in respect of the use and disclosure of personal information, and the Health Records Act 2001 in respect of health information more specifically. These Acts provide further safeguards against unlawful or arbitrary interferences with privacy.
Right to freedom of expression
Section 15(2) of the Charter provides that every person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds. However, section 15(3) provides that the right may be subject to lawful restrictions reasonably necessary to respect the rights and reputations of others, or for the protection of national security, public order, public health or public morality.
Secrecy provision substituted for section 131 of the TAA
The new secrecy provision in clause 38 of the Bill, which replaces section 131 of the TAA, prohibits ‘specified persons’ from disclosing restricted information acquired by reason of having been a specified person, unless an exemption applies. Specified persons are defined as persons who are or have been appointed under the TAA, employed or engaged by the Commission, or authorised to perform functions or powers of or on behalf of the Commission.
In my view, this clause does not limit freedom of expression. Any restriction on freedom of expression is reasonably necessary to respect the rights of other persons, including the right to privacy, and is therefore permitted by section 15(3) of the Charter. Additionally, the persons to whom these restrictions will apply have voluntarily assumed the obligations and duties that attach to these roles.
Rights of children
Section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child. This right recognises the special vulnerability of children. The scope of the right is informed by article 3 of the United Nations Convention on the Rights of the Child, which requires that in all actions concerning children, the best interests of the child shall be a primary consideration.
In the context of the criminal process, section 23(3) of the Charter provides that a child who has been convicted of an offence must be treated in a way that is appropriate for their age.
Disentitlement to benefits for dependent child survivor convicted of certain offences
Clauses 30 and 32 of the Bill expand the circumstances in which a surviving dependent child will not be entitled to benefits under the TAA in relation to the death of their parent in an accident. In particular, the amendments provide that the Commission is not liable to pay compensation to a surviving dependent child who is convicted of an offence of murder or manslaughter involving use of a motor vehicle, or an offence against section 318(1) or 319(1) of the Crimes Act 1958, for the death of their parent in the relevant transport accident.
The rights of children under sections 17(2) and 23(3) of the Charter are potentially relevant to these clauses. Disentitlement to benefits in relation to the death of a parent may adversely affect the interests of children who would otherwise be dependent on the parent for economic support (section 3 of the TAA, ‘dependent child’). Any impact is likely to be limited to children above the age of 10, as children under that age are conclusively presumed incapable of committing an offence (section 344, Children, Youth and Families Act 2005), and under the age of 18 (according to the definition of ‘child’ in section 3 of the Charter).
In my view, however, section 23(3) of the Charter is not engaged because it is concerned with the conditions under which children, convicted of offences, are detained. It does not extend to treatment of children in civil contexts such as the TAA.
Any limitation upon the rights of children protected by section 17(2) of the Charter is, in my opinion, reasonable and justified. The purpose of clauses 30 and 32 is to ensure that a child does not unfairly benefit from the commission of an offence which results in the death of their parent, not to punish the child. That purpose is consistent with the objects of the TAA, including to reduce the cost to the community of compensation for transport accidents, and to provide just compensation for injuries and deaths resulting from accidents (section 8). It also promotes the right to life enshrined in section 9 of the Charter.
In addition, surviving dependent children are only disentitled to benefits upon conviction for a motor vehicle offence which causes death or serious injury, not for a minor or unrelated offence. Children convicted of those offences are not deprived of vested benefits, but rather the ability to claim benefits under the TAA. Further, the amendments do not limit protections for children under other Acts, such as under Chapter 4 of the Children, Youth and Families Act 2005, or entitlement to benefits under legal instruments such as wills. Any limitation upon section 17(2) of the Charter is therefore narrowly tailored and proportionate to the legislative objective.
Right to fair hearing and presumption of innocence
Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. In the criminal context, the fair hearing right protects the ability of an accused to prepare and mount their defence without suffering any substantial procedural disadvantage in relation to the prosecution.
Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. One dimension of this right is the requirement that the prosecution prove the elements of an offence beyond a reasonable doubt.
Evidence indicated by prescribed road safety cameras is, absent evidence to the contrary, proof of certain facts
Clause 3 of the Bill enacts new provisions into the RSA. These provisions create a presumption that, without prejudice to any other mode of proof and in the absence of evidence to the contrary, evidence indicated by an image or message produced by a prescribed road safety camera, or a prescribed process used in a prescribed manner, is proof of a relevant fact. Relevant facts include the touching of a portable device by a driver and failure to wear a seatbelt.
This clause is relevant to the presumption of innocence in section 25(1) of the Charter because it requires that, in proceedings for ‘operator onus offences’ under section 66 of the RSA, an accused person bears a burden to adduce (or point to) evidence of certain matters. However, these clauses do not limit the right to be presumed innocent as they only place an evidential (rather than a legal) burden upon an accused. Once the accused has adduced (or pointed to) some evidence to the contrary of the relevant fact, the onus shifts to the prosecution to prove the existence of the relevant fact beyond a reasonable doubt. The Court of Appeal has held that an evidential onus to establish a reasonable excuse exception does not limit the Charter’s right to a presumption of innocence, as such an onus falls short of imposing any burden of persuasion upon an accused.
Even if the clause is considered to limit the right in section 25(1) of the Charter, any such limit is, in my view, reasonable and justified. The clause is necessary to ensure the effective administration of a regulatory scheme designed to protect the public from safety risks arising from the use of portable devices while driving and the failure to wear seatbelts. The use of road safety cameras will support enhanced enforcement of distracted driver and seatbelt offences, which otherwise depends upon roadside observation by police.
The nature of any limitation is minimal, as the relevant offences are regulatory offences enforced by way of fines, not imprisonment.
I do not consider there are any less restrictive means reasonably available to achieve the legislative purpose, as it would be impractical to require prosecutors to establish the veracity of road safety camera evidence in relation to every infringement in which the accused elects to have the matter heard in court.
Requirement to give notice of intention to raise exemption under Road Rules
Clause 5 creates a new provision in the RSA which requires an accused in a proceeding for a camera-detected seatbelt offence, who intends to invoke an exemption under the Road Safety Road Rules 2017, to give written notice of the matter to the Chief Commissioner of Police 28 days before the hearing of the charge.
I do not consider that this clause limits the fair hearing right in section 24(1) of the Charter. A requirement for the accused to give notice of their intention to raise a specific defence does not constitute a burden which could affect the fairness of the hearing as a whole. The purpose of the notice requirement is to promote early settlement, which furthers the public interest in the fair and expeditious administration of justice.
Immediate suspension of, or disqualification from obtaining, driver licence or learner permit
Clauses 8 and 14 expand the types of offences in sections 85I(4) and 85ZH(4) (respectively) of the RSA which, upon a person being charged, enliven the power for a senior police officer to immediately suspend that person’s driver licence or learner permit, or to disqualify the person from obtaining one. Clauses 9 and 15 introduce new provisions which extend the immediate suspension or disqualification powers to persons charged with specified driving-related offences, including failure to render assistance under section 61(1) of the RSA.
These clauses may diminish the presumption of innocence protected under section 25(1) of the Charter because they enable the suspension of a person’s driver licence or learner permit, or their disqualification from obtaining a licence or permit, on the basis that the person has been charged with a specified offence, but before that person has been found (or has pleaded) guilty.
However, I consider that any such limit is reasonable and justified under section 7(2) of the Charter.
The purpose of the immediate suspension/disqualification regime is to ensure the safety of road users. Driving a motor vehicle poses a risk to public safety. The specified offences which engage the suspension/disqualification powers are serious driving-related offences, not minor infractions. Prohibiting a person from driving, pending the resolution of a charge for a specified offence, promotes the safety of all road users. The clauses therefore reflect a proportionate balance between individual liberties and public safety.
I do not consider there are any less restrictive means of achieving the important public safety objective of these amendments. The suspension/disqualification powers are confined to drivers who are charged with specified, serious driving-related offences in circumstances where a senior police officer is satisfied the accused poses an unacceptable risk to road safety until the charge is determined. The availability of an immediate suspension or disqualification is necessary to prevent the risk of harm from dangerous driving in the time between a person being charged with a specified offence, and the resolution of criminal proceedings.
Safeguards ensure the extent of any limitation upon rights in criminal proceedings is minimal. A licence suspension or disqualification from obtaining a licence does not occur automatically upon a person being charged with a specified offence, but upon the exercise of discretion by a senior police officer (sections 85I(1), 85IA(2), 8ZH(1), 85ZHA(2)). The senior police officer must first be reasonably satisfied of certain facts which are connected to the legislative objective, including that the person poses an unacceptable risk to road safety (sections 85I(2), 85IA(3), 85ZH(2), 85ZHA(3)).
Moreover, a suspension under section 85I or 85IA or a disqualification under section 85ZH or 85ZHA may be revoked by the Chief Commissioner of Police (sections 85Q, 85ZO). A person can also appeal a decision to suspend their licence or permit, or to disqualify them from obtaining one, to the Magistrates’ Court (sections 85S, 85ZQ). In the context of an appeal, there are protections against self-incrimination, including a prohibition on using information or documents as evidence in the proceeding for the hearing of the underlying criminal charge (sections 85V and 85ZT, clauses 11 and 17).
Right against self-incrimination
Section 25(2) of the Charter sets out minimum guarantees for accused persons in the context of criminal proceedings. These are considered aspects of the broader fair hearing right in section 24(1) of the Charter.
Relevantly, section 25(2)(k) provides that a person charged with a criminal offence must not be compelled to testify against themselves or to confess guilt. This right is at least as broad as the common law privilege against self-incrimination. It prevents incriminating material obtained from a person, under compulsion, from being admitted in subsequent criminal proceedings against that person. The protection applies regardless of whether the information was obtained prior, or subsequent to the criminal charge being laid.
At common law, the protection accorded to pre-existing documents is considerably weaker than that accorded to oral testimony or to documents that are brought into existence to comply with a request for information. Accordingly, any protection afforded to documentary material is limited in scope and does not fall within the core of the right.
Indemnified person to give notice to Commission
Clause 35 of the Bill substitutes three new subsections for subsection 99(1) of the TAA. As described above, new subsection (1) requires an indemnified person to notify the Commission in writing of the fact of a transport accident resulting in death or injury, including particulars as to the date, nature, and circumstances of the accident.
In my opinion, this amendment does not limit the privilege against self-incrimination protected under section 25(2)(k) of the Charter because the obligation to provide information to the Commission does not rise to the level of compulsion. It is not an offence to fail to comply with the notice requirement. Rather, non-compliance simply gives rise to a right for the Commission to recover, from the indemnified person, an amount in damages that is reasonably attributable to the failure (section 99(4)).
Moreover, the predominant purpose of the notice requirement is to facilitate the requirement in section 94 of the TAA for the Commission to provide indemnification in relation to civil liability for damages flowing from a relevant transport accident, not to support the investigation or prosecution of criminal offences.
In addition, because clause 35 of the Bill does not expressly abrogate the common law privilege against self-incrimination, it would be required (in accordance with the principle of legality) to be construed as being subject to that protection. For this additional reason, the amendment does not limit the right in section 25(2)(k) of the Charter.
Expanded power of Commission to commence prosecutions and substituted secrecy provision
Clause 37 of the Bill expands the power of the Commission, in section 120 of the TAA, to commence prosecutions. In addition to offences under the TAA, the Commission will be empowered to commence prosecutions for offences against the Crimes Act 1958 which occur in connection with a claim for compensation under the TAA. For example, the Commission may lay charges for offences against sections 81 (obtaining property by deception) and 82 (obtaining financial advantage by deception) of the Crimes Act 1958. As described above, clause 38 of the Bill substitutes a new secrecy provision for section 131 of the TAA. The new secrecy provision permits specified persons to disclose restricted information in certain circumstances, including with respect to legal proceedings.
The interaction of clauses 37 and 38 of the Bill, with existing powers of persons employed in administration of the TAA to compel production of documents for the purpose of enforcing the Act (section 127A of the TAA), may engage the right against self-incrimination. Specifically, it is arguable that Commission employees are empowered to compel production of documents from a person which could subsequently be used in a criminal proceeding commenced by the Commission against that person.
However, in my view, any limit upon the privilege against self-incrimination protected under section 25(2)(k) of the Charter is reasonable and justified.
The purpose of the Commission’s expanded prosecution powers is to protect the integrity of the claims process. This is consistent with the scope of the power to compel documents in section 127A of the TAA: that power can only be exercised for the purposes of determining whether provisions of the TAA are being contravened or in order to enforce the provisions of the TAA. Therefore, any limit upon the protection from self-incrimination is circumscribed to the legislative purpose.
Although there is no explicit immunity from using documents compelled under section 127A of the TAA in subsequent proceedings, the principle of legality also operates to ensure that Commission employees cannot abrogate the common law right against self-incrimination without express statutory authority. Employees are not authorised by the TAA to compel production of documents for purposes of enforcing the Crimes Act 1958. Additionally, section 127B of the TAA provides a reasonable excuse defence for a failure or refusal to comply with a requirement made by a person exercising powers under section 127A, which will include a refusal on the grounds of invoking the privilege against self-incrimination.
Moreover, the protection from being compelled to produce pre-existing documents receives less protection than compulsion to provide oral testimony. The extent of any limitation upon the right is therefore minimal.
Right not to be tried or punished more than once
Section 26 of the Charter provides that a person must not be tried or punished more than once for an offence in respect of which they have already been finally convicted or acquitted in accordance with law.
Disentitlement of persons charged with specified offences from benefits under the TAA
Clauses 24 and 30–32 of the Bill expand the circumstances in which a person will not be entitled to benefits under the TAA by virtue of having been convicted of an offence. In particular, the amendments provide that the Commission is not liable to pay compensation or benefits to a person injured in an accident (clause 24), to a surviving partner (clauses 30–31), or to a surviving dependent child (clauses 30, 32), who is convicted of an offence of murder or manslaughter involving use of a motor vehicle, or an offence against sections 318(1) or 319(1) of the Crimes Act 1958. Clause 24 also extends the disentitlement to benefits to an injured person who is convicted of the offence of child homicide in section 5A of the Crimes Act 1958 involving the use of a motor vehicle.
In my view, these clauses do not limit the protection against double punishment in section 26 of the Charter, because they do not impose penal consequences. The legislative purpose is to ensure that persons who commit driving-related offences which result in death or injury do not benefit from the commission of those offences. That purpose is consistent with the objects of the TAA, including to provide just compensation for injuries and deaths resulting from transport accidents (section 8). The amendments do not impose a financial penalty upon persons convicted of the specified offences, but rather deprive them of access to a statutory benefit.
The Hon. Jaala Pulford MP
Minister for Employment
Second reading
That the second-reading speech be incorporated into Hansard.
Motion agreed to.
Ms PULFORD: I move:
That the bill be now read a second time.
Incorporated speech as follows:
The primary objective of the Bill is to support the delivery of the Road Safety Strategy and the Government’s aim of reducing the road toll by 50 per cent by 2030 through the following measures:
• Enabling better enforcement of distracted driving and seatbelt wearing offences by giving evidential status to images from new types of road safety cameras; and
• Adding to the list of serious offences that Victoria Police may use to trigger immediate licence suspension and disqualification when charges are laid under the Road Safety Act 1986.
The Bill is also intended to improve and make the transport accident scheme fairer by making various amendments to address identified anomalies in the Transport Accident Act 1986.
Enforcing distracted driving and seatbelt wearing offences
In 2021, 31 people died while not wearing a seatbelt. That is 13% of the road toll in 2021.
We all know that seatbelts save lives and reduce the severity of injuries and that wearing a seatbelt is one of the easiest and most important things to do to protect yourself in the event of a crash. Every car has them and it doesn’t take long to click in. There really is no excuse.
Yet, more than 50 years after Victoria was the first jurisdiction in the world to introduce mandatory seatbelt laws in 1970, too many people are still not complying.
I say to those people that are not buckling up—you are not just risking your own wellbeing.
You are risking the safety of those in the car with you. You are risking the future of the family you leave behind and you are risking the mental wellbeing of everyone that will miss you when you’re gone.
If you survive, you face the prospect of severe injury and significant impacts on the family and friends that will need to care for you. Your actions will also impose significant costs on the health system.
To prevent lives being lost and severe injuries being sustained, the Government is taking action to improve compliance with seat belt wearing requirements.
The Government has committed approximately $34 million over five years to roll-out new detection cameras and enforcement systems as a priority project under the Road Safety Strategy Action Plan 2021–2023.
The new cameras will detect persons not wearing seatbelts and drivers using portable devices when driving.
Reducing the use of mobile phones and other portable devices by drivers when driving is another vitally important part of the Victorian Road Safety Strategy 2021–30 because driver distraction is estimated to be the contributing factor in 11% of road fatalities, amounting to approximately 24 lives lost each year. Driver distraction is also estimated to be the cause of over 400 serious injuries per year.
In 2020, an investigation found one in 42 drivers to be illegally using their mobile phones while driving. Because there were limitations surrounding how this information was collected, the real amount of mobile phone use by drivers when driving is expected to be much higher.
Using available data, the Monash University Accident Research Centre has estimated an automated enforcement camera program focused on mobile phone use and seat belt wearing could prevent 95 casualty crashes per year and save taxpayers $21 million annually.
The proposed investment in new camera technology to support the enforcement of existing laws on seat belts and mobile phone use is therefore well justified.
New South Wales and Queensland have already deployed camera detection technology. Victorian officials are working with counterparts in those States and other States and Territories to align laws and systems to ensure consistency between jurisdictions. This includes recently agreeing a nationally consistent approach to the road rules relating to drivers touching portable devices while driving.
The amendments to the Road Safety Act 1986 that are specified in Part 2 of the Bill will enable the use of images captured by the new cameras as evidence.
The Bill provides that images from prescribed devices can evidence the following relevant facts:
• That the driver of a motor vehicle was, while the vehicle was moving or stationary (but not parked), touching a portable device, or had a portable device resting on their body or on clothes being worn by them or on an item in their lap; and
• That the driver or passenger of a motor vehicle was, while the vehicle was moving or stationary (but not parked), occupying a seating position in the vehicle fitted with an approved seatbelt and the driver or passenger was not wearing the seatbelt, or was not wearing the seatbelt properly.
The Bill provides that evidence of a relevant fact is, without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof of the relevant fact on the relevant occasion.
The technology uses an artificial intelligence-enabled camera system to capture high-resolution images of passing vehicles in all traffic and weather conditions—day and night.
Images that are deemed likely to contain a portable device offence are then verified by appropriately trained personnel.
If an offence is detected and verified, then an infringement notice is issued to the registered owner of the vehicle.
As with other camera-detected road safety offences, drivers will have options to seek a review of any fine issued by the new cameras, have the matter determined in court or nominate another person as the driver of the vehicle if the registered owner was not the driver when the offence was committed.
The amendments in the Bill anticipate Victoria adopting recently agreed national reforms to the Australian Road Rules. Reforms include extending the scope of the rule from mobile phones to all portable devices; removal of the defence of passing the portable device to a passenger; and specifying that resting the portable device on the driver’s body is an offence.
Adoption of the Australian Road Rule reforms will be implemented by amendments to regulations made under the Road Safety Act 1986. These amendments are being prepared in parallel to Parliamentary consideration of the Bill. Subject to the enactment of the Bill and commencement of the new laws, the automated camera enforcement system is planned to commence in early 2023.
While camera operations are proposed to start in early 2023, it is planned that there will be a three-month period whereby warning letters will be issued instead of fines. Both before and during this period there will be extensive communications campaign informing all Victorian motorists about the deployment of the new technology and the commencement of their operation.
Before and after the commencement of new camera systems, Victoria Police will continue to issue on the spot fines to drivers caught committing these offences. That will not change and will remain an important part of the compliance monitoring and enforcement scheme.
Strengthening license suspension powers
The other road safety matter that the Bill will address is the capacity for Victoria Police to immediately suspend licences or disqualify a person from driving in circumstances where the person has been charged with committing a serious road safety offence and is considered to be a threat to other road users. The Bill addresses gaps in the current legislation by adding hit and run and other serious offences to the list of offences that may trigger immediate licence suspension or disqualification.
The Government acknowledges that members of the Legislative Council have previously identified these gaps and have moved amendments in June 2021 to address them. At that time, the Government indicated in-principle support, however, the Government could not support the house amendments due to concerns about the breadth of offences that would trigger immediate licence suspension. The house amendment referenced all the offences prescribed in section 61 of the Road Safety Act—not just the “Hit and Run” offence. For example, it could be applied to people that fail to stop and provide their contact details when there is an incident involving minor property damage. This was not intended.
Clauses 9 and 15 of the Bill add “hit and run” offences specified in section 61 of the Road Safety Act and other serious road safety offences, such as culpable driving causing death and dangerous driving causing death or serious injury, to the list of offences that enable Victorian Police to immediately suspend licences and disqualify persons from driving.
As is the case now under the Road Safety Act 1986, suspension of a driver licence or disqualification from applying for a licence occurs when persons are charged by Victoria Police and Victoria Police is satisfied that the person is an unacceptable risk to road safety until the charge is determined.
The amendments provide assurance to the community that persons who have been charged with committing a serious road offence, and are thought to be a threat to others, are able to be removed from driving on the roads as soon as practicable.
Improvements to the Transport Accident scheme
Victoria’s transport accident insurance scheme provides world leading care and support to victims of road trauma. It helps thousands of people each year get back on their feet and provides care and support to those that need it most. In the 2020–2021 financial year, 53,705 Victorians received $1.57 billion in support and benefits after an accident. In addition, $192 million from the insurance fund was invested in measures to prevent accidents.
The Transport Accident Commission does a great job administering the current scheme. As an organisation they are always looking to find better ways of doing things in the interests of their clients and the community. However, when making decisions about treatment and services the TAC can pay for, it must follow the Transport Accident Act 1986.
Through experience, the TAC, its clients and their egal representatives and other stakeholders have identified anomalies and inequities that need to be addressed to ensure we get the best possible outcomes for victims of road trauma and their families.
Part 3 of the Bill specifies amendments to the Transport Accident Act 1986 that will:
• Increase the age of a “dependent child” from under 16 to under 18 years old to align the Act with the Victorian Charter of Human Rights and Responsibilities Act 2006;
• Provide that a TAC client who has a subsequent road accident is not, by reason of that subsequent accident, financially disadvantaged by having their entitlement to loss of earnings payments reduced;
• Increase the amount of the deemed Loss of Earning Capacity for clients whose pre-accident earning capacity cannot be determined from 64% to 80% of Average Weekly Earnings;
• Provide that dependent children orphaned when both parents are killed in the same transport accident are entitled to the same lump sum, education and weekly benefits as apply when parents are killed in two separate transport accidents;
• Remove discrimination for older workers by increasing loss of earnings and loss of earning capacity entitlements from 12 to 36 months and providing a total income benefit of up to 3 years;
• Expand the definition of “member of immediate family” to include a grandchild;
• Expand TAC’s scheme coverage to cyclists injured as a result of a passenger opening a car door;
• Deprive a person from receiving dependency benefits, if they caused the death of their partner or parent in a transport accident and are convicted of murder, manslaughter, culpable driving causing death or dangerous driving causing death under the Crimes Act 1958;
• Deprive a person who is injured in a transport accident from receiving compensation from TAC (apart from medical and like benefits) if the person is convicted of child homicide under the Crimes Act 1958 because of their use of a motor vehicle in that incident (in addition to the currently included offences of murder, manslaughter and dangerous or culpable driving causing death); and
• Amend the power of the Commission to direct dependency benefits to the most appropriate person for the benefit of dependent children, by providing that the benefit must be paid to the person who has the daily care and control of the child and making related amendments.
These reforms mainly address anomalies in eligibility and the benefits that are able to be paid under the Transport Accident Act 1986 in specified circumstances.
The Bill also makes the following changes to the Transport Accident Act 1986 to improve administrative arrangements:
• Align the current information handling legislation with other more contemporary provisions in the transport portfolio so that the TAC can release information to, for example: Victoria Police to protect a person’s health and safety and authorities like the Coroners court to pursue guardian and administration orders.
• Update a superseded reference to the Transport Accident (Impairment) Regulations 2010; and
• Give the Commission the power to lay fraud charges under the Crimes Act 1958 in connection with claims.
In respect to the last amendment the intention is that the TAC will work with the Director of Public Prosecutions in relation to the conduct of prosecutions for fraud in relation to the transport accident scheme. The TAC will undertake initial investigations and ensure that there is sufficient evidence to lay charges. After proceedings have commenced, the case will be handed over to the Director of Public Prosecutions to progress.
Conclusion
The initiatives supported and enabled by this Bill will make a tangible contribution towards reducing the road toll as we work towards our goal of zero fatalities by 2050.
We need to take action to reduce the number of accidents caused by driver distraction or where people aren’t wearing seatbelts. The impact of these behaviours on the road toll is significant and we will pay the consequences if we do not act now.
Education will continue to be an important part of the Government’s strategy to improve road safety. However, active enforcement of the law is also needed, and new camera technology will allow us to do this more effectively.
Our focus is always on preventing accidents, but if they do occur, the Government acknowledges that help and support needs to be provided to those that are injured and those that are left behind. The Bill makes important contributions to delivering fairer and just outcomes for persons that are affected by transport accidents.
I commend the Bill to the house.
Mr FINN (Western Metropolitan) (18:13): On behalf of Mr Davis, I move:
That the debate be adjourned for one week.
Motion agreed to and debate adjourned for one week.