Road Transport (General) Act 1999 No 18

An Act to provide for the administration and enforcement of road transport legislation; to make provision with respect to written off and wrecked vehicles; to provide for the review of decisions made under road transport legislation; to make further provision with respect to the use of vehicles on roads and road related areas; and for other purposes.

Part 1 Preliminary

Note—

This Act and the regulations made under it form part of the road transport legislation identified by section 5. Other road transport legislation includes the Road Transport (Driver Licensing) Act 1998, the Road Transport (Heavy Vehicles Registration Charges) Act 1995, the Road Transport (Safety and Traffic Management) Act 1999, the Road Transport (Vehicle Registration) Act 1997 and the regulations made under those Acts. As part of the road transport legislation, this Act is subject to various provisions in this Act concerning the administration and enforcement of the road transport legislation generally.

1 Name of Act

This Act is the Road Transport (General) Act 1999.

2 Commencement

This Act commences on a day or days to be appointed by proclamation.

3 Definitions (cf Traffic Act, s 2)

(1)  In this Act:

Australian driver licence has the same meaning as it has in the Road Transport (Driver Licensing) Act 1998.

authorised officer means:

(a)  a police officer, or

(b)  a person who is appointed for the time being by the Authority as an authorised officer for the purposes of the provision in which the expression is used, or

(c)  a person (or a person belonging to a class or description of persons) prescribed by the regulations.

Authority means the Roads and Traffic Authority.

drive includes the following:

(a)  be in control of the steering, movement or propulsion of a vehicle,

(b)  in relation to a trailer, draw or tow the trailer,

(c)  ride a vehicle.

driver means any person driving a vehicle, and includes any person riding a cycle.

driver licence has the same meaning as it has in the Road Transport (Driver Licensing) Act 1998.

exercise a function includes perform a duty.

function includes a power, authority or duty.

home address of a person means the person’s current place of abode.

horse includes any animal used for the carriage of persons or goods.

learner licence has the same meaning as it has in the Road Transport (Driver Licensing) Act 1998.

light rail vehicle has the same meaning as it has in the Road Transport (Safety and Traffic Management) Act 1999.

major offence means:

(a)  a crime or offence referred to in the definition of convicted person in section 25 (1), or

(b)  any other crime or offence that, at the time it was committed, was a major offence under this Act or the Traffic Act 1909.

motor vehicle means a vehicle that is built to be propelled by a motor that forms part of the vehicle.

penalty notice means a penalty notice issued under Division 1 of Part 3.

prescribed speeding offence means an offence under the Road Transport (Safety and Traffic Management) Act 1999 (or regulations made under that Act) involving the use of a vehicle on a road or road related area at an excessive speed, being an offence that is prescribed by the regulations.

registered, in relation to a vehicle, means registered under the Road Transport (Vehicle Registration) Act 1997.

registered operator has the same meaning as it has in the Road Transport (Vehicle Registration) Act 1997.

registrable vehicle has the same meaning as it has in the Road Transport (Vehicle Registration) Act 1997.

responsible person for a vehicle—see section 7.

rider of an animal includes a person having charge of the animal.

road means an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles.

road related area means:

(a)  an area that divides a road, or

(b)  a footpath or nature strip adjacent to a road, or

(c)  an area that is open to the public and is designated for use by cyclists or animals, or

(d)  an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles, or

(e)  a shoulder of a road, or

(f)  any other area that is open to or used by the public and that has been declared under section 9 to be an area to which specified provisions of this Act or the regulations apply.

road transport legislation—see section 5.

trader’s plate has the same meaning as it has in the Road Transport (Vehicle Registration) Act 1997.

traffic includes vehicular traffic and pedestrian traffic.

trailer means a vehicle that is built to be towed, or is towed, by a motor vehicle, but does not include a motor vehicle that is being towed.

use of a vehicle includes standing the vehicle on a road or road related area.

vehicle means:

(a)  any description of vehicle on wheels (including a light rail vehicle) but not including any other vehicle used on a railway or tramway, or

(b)  any other vehicle prescribed by the regulations.

(2)  A reference in a provision of this Act relating to the road transport legislation (other than this Act or the regulations) to an expression that is defined in the legislation includes, for the purposes of the application of the provision to the legislation, the expression as defined in the legislation.

4 Notes

Notes included in this Act are explanatory notes and do not form part of this Act.

Note—

For the purposes of comparison, a number of provisions of this Act contain bracketed notes in headings drawing attention (“cf”) to equivalent or comparable (though not necessarily identical) provisions of other Acts. For instance, the abbreviation “Traffic Act” in the notes is a reference to the Traffic Act 1909 (as in force immediately before its repeal).

Part 2 Administration of road transport legislation

Division 1 Road transport legislation

5 What is the road transport legislation?

(1)  In this Act, the road transport legislation means the following:

(a)  this Act,

(b)  the Road Transport (Driver Licensing) Act 1998,

(c)  the Road Transport (Heavy Vehicles Registration Charges) Act 1995,

(d)  the Road Transport (Safety and Traffic Management) Act 1999,

(e)  the Road Transport (Vehicle Registration) Act 1997,

(f)  any other Act or regulation (or any provision of such an Act or regulation) prescribed by the regulations,

(g)  any regulation made under any Act referred to in paragraphs (a)–(f) (or any provision of such an Act).

(2)  A regulation referred to in subsection (1) (f) prescribing an Act or regulation (or provision of an Act or regulation) cannot be made without the concurrence of the Minister administering the Act or regulation concerned.

(3)  A provision of this Act relating to the road transport legislation does not apply to the road transport legislation if that legislation provides otherwise either expressly or by necessary intendment.

Division 2 Inter-relationship between road transport legislation and other law

6 General relationship with other laws (cf Traffic Act, ss 11 and 17)

(1) Other Acts and laws not affected except as provided by this section Nothing in the road transport legislation:

(a)  affects any of the provisions of any other Act or any statutory rule, or takes away any powers vested in any person or body by any other Act or statutory rule, except as provided by this section, or

(b)  affects any liability of any person at common law except to the extent that the road transport legislation provides otherwise expressly or by necessary intendment.

(2) This Act generally prevails over other legislation in cases of inconsistency However (subject to subsection (3)):

(a)  an Act that forms part of the road transport legislation prevails over any other Act or statutory rule to the extent of any inconsistency, and

(b)  a statutory rule that forms part of the road transport legislation prevails over any other Act or statutory rule to the extent of any inconsistency in respect of driver licensing, vehicle registration or traffic on roads or road related areas (or other related matters).

(3) Regulations may displace operation of subsection (2) Despite subsection (2), the regulations may provide that any other Act or a statutory rule (or any provision of another Act or statutory rule) prevails over an inconsistent provision of the road transport legislation.

Note—

The expression statutory rule is defined in section 21 (1) of the Interpretation Act 1987 to mean:

(a)  a regulation, by-law, rule or ordinance:

(i)  that is made by the Governor, or

(ii)  that is made by a person or body other than the Governor, but is required by law to be approved or confirmed by the Governor, or

(b)  a rule of court.

Division 3 Responsible persons for vehicles under road transport legislation

7 Who is a responsible person for a vehicle

(1)  In the road transport legislation, the responsible person for a vehicle is:

(a)  in relation to a registered vehicle—each of the following persons:

(i)  a registered operator of the vehicle, except where the vehicle has been disposed of by the operator,

(ii)  if the vehicle has been disposed of by a previous registered operator—a person who has acquired the vehicle from the operator,

(iii)  a person who has a legal right to possession of the vehicle (including any person who has the use of the vehicle under a lease or hire-purchase agreement, but not the lessor while the vehicle is being leased under any such agreement), and

(b)  in relation to an unregistered vehicle to which a trader’s plate is affixed—each of the following persons:

(i)  the person to whom the trader’s plate is issued under the Road Transport (Vehicle Registration) Act 1997,

(ii)  a person who has a legal right to possession of the vehicle (including any person who has the use of the vehicle under a lease or hire-purchase agreement, but not the lessor while the vehicle is being leased under any such agreement), and

(c)  in relation to an unregistered vehicle to which no trader’s plate is affixed—each of the following persons:

(i)  a person who was last recorded as a registered operator of the vehicle,

(ii)  a person who has a legal right to possession of the vehicle (including any person who has the use of the vehicle under a lease or hire-purchase agreement, but not the lessor while the vehicle is being leased under any such agreement), and

(d)  any other person (or class of persons) prescribed by the regulations for the purposes of this definition.

(2)  For the purposes of subsection (1) (d), the regulations may prescribe different persons for different provisions of the road transport legislation.

8 Rights, liabilities and obligations of multiple responsible persons

(1)  Subject to any regulations made under subsection (2), if more than one person is the responsible person for a vehicle at any one time, a reference in any relevant legislation to the responsible person for a vehicle within the meaning of this Act or any other road transport legislation is taken to include a reference to each person who is a responsible person for such a vehicle.

(2)  The regulations may provide for the determination of the respective rights, liabilities and obligations of each responsible person for a vehicle under any relevant legislation, but only with the concurrence of the Minister administering the relevant legislation.

(3)  In this section:

relevant legislation means:

(a)  a provision of the road transport legislation, or

(b)  a provision of any other Act (or a provision of a regulation made under any such Act) concerned with the responsible person for a vehicle within the meaning of this Act or any other road transport legislation.

Division 4 Alteration of scope of operation of road transport legislation

9 Power to include or exclude areas in road transport legislation (cf Traffic Act, s 2A)

(1)  The Minister may declare, by order published in the Gazette, that the road transport legislation, or any specified provision of the road transport legislation:

(a)  applies to a specified area of the State that is open to or used by the public, or

(b)  does not apply to a specified road or road related area.

(2)  The declaration has effect until it is revoked, or for the period specified in the declaration.

10 Power to exclude vehicles, persons or animals from road transport legislation

(1)  The Minister may declare, by order published in the Gazette, that the road transport legislation (or a specified provision of the road transport legislation) does not apply to a vehicle, person or animal in any location or circumstance specified in the order.

(2)  The declaration has effect until it is revoked, or for the period specified in the declaration.

11 Consultation required with Minister administering Motor Accidents Act 1988 in certain cases (cf Traffic Act, s 2A)

Before making a declaration under section 9 or 10 in respect of the Road Transport (Vehicle Registration) Act 1997 (or any regulation made under that Act), the Minister is to consult with the Minister administering the Motor Accidents Act 1988.

12 Application orders and emergency orders

(1)  The Minister may, by notice published in the Gazette, order that the operation of any regulations made under the road transport legislation, or of specified parts of the regulations:

(a)  is suspended for a specified period, or

(b)  is varied in a manner specified by the Minister.

(2)    (Repealed)

(3)  An order may have effect for the whole of the State or for a specified area.

(4)  If the Australian Transport Council terminates an emergency order, the Minister must publish notice of the termination in the Gazette.

(5)  In this section:

Australian Transport Council means the Australian Transport Council referred to in section 4 of the National Transport Commission Act 2003 of the Commonwealth or its successor.

s 12: Am 2004 No 55, Sch 1.29 [1] [2].

13 Authority to maintain database of declarations and orders made under this Division

(1)  The Authority is to maintain a database, in accordance with the regulations, containing information about declarations and orders made under this Division that are in force from time to time.

(2)  The database may be kept in the form of, or as part of, a computer database or in such other form as the Authority considers appropriate.

(3)  The Authority is to give members of the public access to information contained in the database in accordance with the regulations.

(4)  A failure by the Authority to comply with this section does not affect the validity of any declaration or order.

Division 5 Authority documents

14 Authority may issue single authority document to authorised officers

(1)  The Authority may, by means of a single document, authorise a person to carry out functions under one or more authorisation provisions.

(2)  In this section, authorisation provision means a provision of the road transport legislation that enables the Authority to authorise a person to carry out functions under the legislation.

Part 3 Enforcement of road transport legislation and other legislation

Division 1 Penalty notices

15 Penalty notices for certain offences (cf Traffic Act, s 18B (1), (6) and (7))

(1)  A police officer or other authorised officer may serve a penalty notice on a person if it appears to the officer that the person has committed any of the following offences:

(a)  an offence under a provision of the road transport legislation (including an offence by virtue of the operation of section 43 of this Act) that is prescribed by the regulations as a penalty notice offence,

(b)  an offence under the Driving Instructors Act 1992 or any regulation made under that Act that is prescribed by the regulations as a penalty notice offence,

(c)  an offence under section 650 (1) or (4) of the Local Government Act 1993 (including an offence by virtue of the operation of section 651 of that Act),

(d)  an offence under the Motor Accidents Compensation Act 1999 or the regulations made under that Act that is prescribed by the regulations as a penalty notice offence,

(e)  an offence under the Motor Vehicles Taxation Act 1988 or any regulation made under that Act that is prescribed by the regulations as a penalty notice offence,

(f)  an offence under the Passenger Transport Act 1990 or any regulation made under that Act that is prescribed by the regulations as a penalty notice offence,

(g)  an offence under the Recreation Vehicles Act 1983 or any regulation made under that Act that is prescribed by the regulations as a penalty notice offence,

(h)  an offence under the Roads Act 1993 or any regulation made under that Act (including an offence by virtue of the operation of section 244 of that Act) that is prescribed by the regulations as a penalty notice offence.

(i)    (Repealed)

(2)  A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person can pay, within the time and to the person specified in the notice, the amount of penalty prescribed by the regulations for the offence if dealt with under this Division.

(3)  The regulations may:

(a)  prescribe an offence for the purposes of this section:

(i)  by specifying the offence, or

(ii)  by referring to the provision creating the offence, or

(iii)  by providing that all offences under a specified Act, Part of an Act, or Division of a Part of an Act, or under specified regulations (being an Act, a Part or a Division or regulations referred to in subsection (1)) are prescribed as penalty notice offences, or

(iv)  by providing that all offences under any such Act, Part, Division or regulations (other than such of those offences as are specified in the regulations) are prescribed as penalty notice offences, and

(b)  prescribe the amount of penalty payable for the offence if dealt with under this section, and

(c)  prescribe different amounts of penalties for different offences or classes of offences, and

(d)  prescribe different amounts of penalties for the same kind of offence or class of offence committed in specified circumstances.

(4)  An offence in respect of which a penalty of imprisonment may be imposed under the road transport legislation (except an offence against section 25 (2) of the Road Transport (Driver Licensing) Act 1998) or the Motor Accidents Act 1988 cannot be prescribed by the regulations as a penalty notice offence.

(5)  The amount of a penalty prescribed under this section for an offence is not to exceed the maximum amount of penalty that could be imposed for the offence by a court.

s 15: Am 1999 No 41, Sch 4.12; 1999 No 61, Sch 2 [1].

16 Service of penalty notices (cf Traffic Act, s 18B (2))

(1)  A penalty notice may be served personally or by post.

(2)  A penalty notice that relates to an offence of which the responsible person for a vehicle is guilty by virtue of section 43 or the owner is guilty by virtue of section 651 of the Local Government Act 1993 may:

(a)  be served personally or by post, or

(b)  be addressed to the responsible person or owner without naming the responsible person for the vehicle or owner or stating his or her address and may be served by leaving it on or attaching it to the vehicle.

17 Payment of penalty notices (cf Traffic Act, s 18B (4)–(5))

(1)  If the amount of penalty prescribed for an alleged offence is paid under this Division, no person is liable to any further proceedings for the alleged offence.

(2)  Subsection (1) does not affect any power of the Authority under section 36.

(3)  Payment under this section is not to be regarded as an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence.

18 Effect of Division on other kinds of proceedings (cf Traffic Act, s 18B (8))

This Division does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.

Division 2 Production of licences and identification of drivers and passengers

19 Authorised officer may require production of driver licence and name and address from driver or rider (cf Traffic Act, s 5 (1) and (1A))

(1)  An authorised officer may, in the execution of his or her functions under the road transport legislation, require the driver or rider of a vehicle or horse to do any or all of the following:

(a)  produce his or her driver licence (in the case of the driver of a motor vehicle),

(b)  state his or her name,

(c)  state his or her home address.

(2)  A person must not:

(a)  refuse to comply with a requirement of an authorised officer under subsection (1), or

(b)  state a false name or home address.

Maximum penalty: 20 penalty units.

(3)  In subsection (1), a reference to a driver of a vehicle (in the case of a motor vehicle) includes, where the driver is the holder of a learner licence and the motor vehicle is not a motor cycle, a reference to a holder of a driver licence occupying the seat in or on the motor vehicle next to the driver.

20 Authorised officer may require production of driver licence and name and address from certain passengers (cf Traffic Act, s 5 (1B) and (1C))

(1)  A person occupying the seat in or on a motor vehicle (other than a motor cycle) next to a driver who holds a learner licence must, when required to do so by an authorised officer, produce the person’s driver licence and state the person’s name and home address.

Maximum penalty: 20 penalty units.

(2)  A person accompanying another person who is attending a motor registry for the purpose of undergoing any test or examination required by the road transport legislation must, on request, produce his or her driver licence and state his or her name and home address if:

(a)  the request is made by an authorised officer, and

(b)  the person making the request believes on reasonable grounds that the person accompanying the person who is to undergo the test or examination has been giving driving instruction to that person.

Maximum penalty: 20 penalty units.

(3)  In this section:

motor registry means a place at which registration of a vehicle can be effected by or on behalf of the Authority.

21 Authorised officer may require responsible person for vehicle and others to disclose identity of driver who commits offence (cf Traffic Act, s 5 (3) and (4))

(1)  If the driver of a motor vehicle is alleged to have committed an offence under the road transport legislation:

(a)  the responsible person for the vehicle, or the person having the custody of the vehicle, must, when required to do so by an authorised officer, immediately give information (which must, if so required, be given in the form of a written statement signed by the responsible person) as to the name and home address of the driver, and

(b)  any other person must, if required to do so by an authorised officer, give any information that it is in the person’s power to give and that may lead to the identification of the driver.

Maximum penalty: 20 penalty units.

(2)  It is a defence to a prosecution for an offence under subsection (1) (a) if the defendant proves to the satisfaction of the court that he or she did not know and could not with reasonable diligence have ascertained the driver’s name and home address.

(3)  A written statement purporting to be given under subsection (1) (a) and to contain particulars of the name and home address of the driver of a motor vehicle at the time of commission of an alleged offence under the road transport legislation that is produced in any court in proceedings against the person named in the statement as the driver for such an offence is evidence without proof of signature that the person was the driver of the vehicle at the time of the alleged offence if the person does not appear before the court.

22 Production of driver licence to court (cf Traffic Act, s 9)

(1)  A person who is the holder of a driver licence and who is charged with a breach of the road transport legislation must produce his or her driver licence to the court at the hearing of the charge.

(2)  A person must not, without reasonable excuse, fail to comply with subsection (1).

Maximum penalty: 20 penalty units.

23 Unauthorised demand for production of driver licence (cf Traffic Act, s 11AD)

(1)  A person must not (knowing that he or she is not by law authorised to require its production) demand production by another person of that other person’s driver licence.

Maximum penalty: 20 penalty units.

(2)  For the purposes of this section, the making of a statement that could reasonably be understood, by the person to whom the statement is made, as indicating that that person is being required to produce his or her driver licence is taken to be a demand for its production.

(3)  Nothing in this section prohibits a request for production of a driver licence as a means of evidencing the identity or age of a person:

(a)  in connection with the supply of any goods or services, or

(b)  in connection with the conferring of any right, title or benefit, or

(c)  in other circumstances,

where it is reasonable for the person making the request to require evidence of the other person’s identity or age.

Division 3 Licence disqualification

Subdivision 1 General

pt 3, div 3, sdiv 1, hdg: Ins 2002 No 72, Sch 1 [1].

24 Court may impose penalty and disqualify driver on conviction (cf Traffic Act, s 10)

(1)  Subject to section 25 of this Act, section 40 of the Road Transport (Safety and Traffic Management) Act 1999 and sections 25 and 25A of the Road Transport (Driver Licensing) Act 1998, a court that convicts a person of an offence under the road transport legislation may, at the time of the conviction, order the disqualification of the person from holding a driver licence for such period as the court specifies.

(2)  If the court makes an order disqualifying the person, the person is disqualified from holding a driver licence for the period specified by the court.

(3)  Any disqualification under this section is in addition to any penalty imposed for the offence.

(4)  The regulations may:

(a)  provide that any driver licence held by a person (or class of persons) who has been convicted of the offence of driving a motor vehicle on a road or road related area at a speed which is dangerous to the public under the Road Transport (Safety and Traffic Management) Act 1999 or of any other prescribed speeding offence is subject to a speed inhibitor condition, and

(b)  provide a penalty for any breach of any such condition, and

(c)  prescribe any matter necessary or convenient to be prescribed in relation to devices referred to in the definition of speed inhibitor condition in subsection (7).

(5)  The court is to cause particulars of each conviction or order under the road transport legislation to be forwarded to the Authority.

(6)  Section 10 of the Crimes (Sentencing Procedure) Act 1999 does not apply if a person is charged before a court with any of the following offences if, at the time of or during the period of 5 years immediately before the court’s determination in respect of the charge, that section, or section 556A of the Crimes Act 1900, is or has been applied to or in respect of the person in respect of a charge for another offence (whether of the same or a different kind) of the class referred to in this subsection:

(a)  an offence under section 42 of the Road Transport (Safety and Traffic Management) Act 1999 of driving negligently (being driving occasioning death or grievous bodily harm),

(b)  an offence under section 42 of the Road Transport (Safety and Traffic Management) Act 1999 of driving a motor vehicle on a road or road related area furiously or recklessly or at a speed or in a manner which is dangerous to the public,

(c)  an offence under section 9, 12 (1), 15 (4), 16, 43 or 70 of the Road Transport (Safety and Traffic Management) Act 1999,

(d)  an offence of aiding, abetting, counselling or procuring the commission of any such offence,

(e)  an offence referred to in section 10 (5) of the Traffic Act 1909 as in force immediately before its repeal that was committed before that repeal.

(7)  In this section:

road transport legislation does not include the Road Transport (Heavy Vehicles Registration Charges) Act 1995 or regulations made under that Act.

speed inhibitor condition means a condition limiting a driver licence to the driving of a motor vehicle to which is affixed a sealed device that prevents the engine from propelling the vehicle at a speed in excess of 60km/hr.

s 24: Am 1999 No 94, Sch 4.52 [1]; 2000 No 93, Sch 2.44 [1].

25 Disqualification for certain major offences (cf Traffic Act, s 10A)

(1) Definitions In this section:

automatic disqualification means a disqualification under this section from holding a driver licence without specific order of a court.

convicted person means:

(a)  a person who is, in respect of the death of or bodily harm to another person caused by or arising out of the use of a motor vehicle driven by the person at the time of the occurrence out of which the death of or harm to the other person arose, convicted of:

(i)  the crime of murder or manslaughter, or

(ii)  an offence under section 33, 35, 53 or 54 or any other provision of the Crimes Act 1900, or

(b)  a person who is convicted of an offence under section 51A of the Crimes Act 1900, or

(c)  a person who is convicted of an offence under any of the following provisions:

(i)  section 42 of the Road Transport (Safety and Traffic Management) Act 1999 of driving a motor vehicle on a road or road related area furiously or recklessly or at a speed or in a manner which is dangerous to the public,

(ii)  section 42 of the Road Transport (Safety and Traffic Management) Act 1999 of driving a motor vehicle negligently (being driving occasioning death or grievous bodily harm),

(iii)  section 43 of the Road Transport (Safety and Traffic Management) Act 1999,

(iv)  section 9 (1A), (1), (2) (a) or (b), (3) (a) or (b), (4) (a) or (b) or section 15 (4) or 16 of the Road Transport (Safety and Traffic Management) Act 1999,

(v)  section 22 (2) of the Road Transport (Safety and Traffic Management) Act 1999,

(vi)  section 12 (1) (a) or (b) of the Road Transport (Safety and Traffic Management) Act 1999,

(vii)  section 29 (2) of the Road Transport (Safety and Traffic Management) Act 1999,

(viii)  section 70 of the Road Transport (Safety and Traffic Management) Act 1999, or

(d)  a person who is convicted of aiding, abetting, counselling or procuring the commission of, or being an accessory before the fact to, any such crime or offence.

conviction means the conviction in respect of which a person is a convicted person.

ordered disqualification means disqualification under this section from holding a driver licence that is ordered by a court.

(2) Disqualification if no previous major offence If, at the time of the conviction of the convicted person or during the period of 5 years before the conviction (whether that period commenced before or commences after the commencement of this section), the convicted person is not or has not been convicted of any other major offence (whether of the same or a different kind):

(a)  where the conviction is for an offence under section 9 (1A), (1) or (2) of the Road Transport (Safety and Traffic Management) Act 1999:

(i)  the person is automatically disqualified for 6 months from holding a driver licence, or

(ii)  if the court that convicts the person thinks fit to order a shorter period (but not shorter than 3 months) of disqualification—the person is disqualified from holding a driver licence for such shorter period as may be specified in the order, or

(b)  where the conviction is for an offence under section 9 (3) or 12 (1) of the Road Transport (Safety and Traffic Management) Act 1999:

(i)  the person is automatically disqualified for 12 months from holding a driver licence, or

(ii)  if the court that convicts the person thinks fit to order a shorter period (but not shorter than 6 months) or longer period of disqualification—the person is disqualified from holding a driver licence for such period as may be specified in the order, or

(c)  where the conviction is for an offence under section 29 (2) of the Road Transport (Safety and Traffic Management) Act 1999:

(i)  the person is automatically disqualified for 3 years from holding a driver licence, or

(ii)  if the court that convicts the person thinks fit to order a shorter period (but not shorter than 6 months) or longer period of disqualification—the person is disqualified from holding a driver licence for such period as may be specified in the order, or

(d)  where the conviction is for any other offence:

(i)  the person is automatically disqualified for a period of 3 years from holding a driver licence, or

(ii)  if the court that convicts the person thinks fit to order a shorter period (but not shorter than 12 months) or longer period of disqualification—the person is disqualified from holding a driver licence for such period as may be specified in the order.

(3) Disqualification if previous major offence If, at the time of the conviction of the convicted person or during the period of 5 years before the conviction (whether that period commenced before or commences after the commencement of this section), the convicted person is or has been convicted of one or more other major offences (whether of the same or a different kind):

(a)  where the conviction is for an offence under section 9 (1A), (1) or (2) of the Road Transport (Safety and Traffic Management) Act 1999:

(i)  the person is automatically disqualified for 12 months from holding a driver licence, or

(ii)  if the court that convicts the person thinks fit to order a shorter period (but not shorter than 6 months) or longer period of disqualification—the person is disqualified from holding a driver licence for such period as may be specified in the order, or

(b)  where the conviction is for an offence under section 9 (3) or 12 (1) of the Road Transport (Safety and Traffic Management) Act 1999:

(i)  the person is automatically disqualified for 3 years from holding a driver licence, or

(ii)  if the court that convicts the person thinks fit to order a shorter period (but not shorter than 12 months) or longer period of disqualification—the person is disqualified from holding a driver licence for such period as may be specified in the order, or

(c)  where the conviction is for an offence under section 29 (2) of the Road Transport (Safety and Traffic Management) Act 1999:

(i)  the person is automatically disqualified for 5 years from holding a driver licence, or

(ii)  if the court that convicts the person thinks fit to order a shorter period (but not shorter than 12 months) or longer period of disqualification—the person is disqualified from holding a driver licence for such period as may be specified in the order, or

(d)  where the conviction is for any other offence:

(i)  the person is automatically disqualified for 5 years from holding a driver licence, or

(ii)  if the court that convicts the person thinks fit to order a shorter period (but not shorter than 2 years) or longer period of disqualification—the person is disqualified from holding a driver licence for such period as may be specified in the order.

(4) Calculation of disqualification periods in case of multiple offences If 2 or more convictions of a person are made, whether or not at the same time, for crimes or offences arising out of a single incident involving the use of a motor vehicle or trailer, the following provisions apply:

(a)  for the purpose of ascertaining which of subsections (2) and (3) should apply in relation to any such conviction:

(i)  the other of those convictions are to be disregarded, and

(ii)  subsection (2) or (3) (as the case may require) is, accordingly, to be the applicable subsection, and

(b)  the maximum period of automatic disqualification in respect of all those crimes or offences is to be:

(i)  if subsection (2) is applicable—3 years, or

(ii)  if subsection (3) is applicable—5 years, and

(c)  any minimum period of ordered disqualification is, in respect of those crimes or offences, to be disregarded to the extent that the total period of ordered and (where relevant) automatic disqualification would exceed:

(i)  where subsection (2) is applicable—12 months, or

(ii)  where subsection (3) is applicable—2 years.

However, nothing in paragraph (c) prevents the court, if it thinks fit, from making any order it could have made if that paragraph had not been enacted.

(5) Disqualification in addition to any other penalty Any disqualification under this section is in addition to any penalty imposed for the offence.

(6) Relationship to Subdivision 2 This section has effect subject to the provisions of Subdivision 2.

s 25: Am 2002 No 72, Sch 1 [2]; 2004 No 17, Sch 2.3 [1] [2].

Subdivision 2 Use of interlock devices as alternative to disqualification

pt 3, div 3, sdiv 2: Ins 2002 No 72, Sch 1 [3].

25A Interpretation

In this Subdivision:

alcohol-related major offence means any of the following offences:

(a1)  an offence under section 9 (1A) of the Road Transport (Safety and Traffic Management) Act 1999,

(a)  an offence under section 9 (1) (a) or (b) of the Road Transport (Safety and Traffic Management) Act 1999,

(b)  an offence under section 9 (2) (a) or (b) of the Road Transport (Safety and Traffic Management) Act 1999,

(c)  an offence under section 9 (3) (a) or (b) of the Road Transport (Safety and Traffic Management) Act 1999,

(d)  an offence under section 9 (4) (a) or (b) of the Road Transport (Safety and Traffic Management) Act 1999,

(e)  an offence under section 12 (1) (a) or (b) of the Road Transport (Safety and Traffic Management) Act 1999 where the offence involved driving under the influence of alcohol,

(f)  an offence under section 15 (4) of the Road Transport (Safety and Traffic Management) Act 1999.

disqualification compliance period, in relation to a person, means the disqualification compliance period applying to the person under section 25D (a).

disqualification period, in relation to a person, means the disqualification period applying to the person for the purposes of section 25C.

disqualification suspension order, in relation to a person, means an order made under section 25C that, subject to certain conditions, may operate to suspend a disqualification under section 25 of the person from holding a driver licence.

interlock driver licence means a conditional licence issued under the Road Transport (Driver Licensing) Act 1998 that restricts the holder of the licence to driving a motor vehicle fitted with an approved interlock device (within the meaning of Part 2A of that Act).

interlock participation period, in relation to a person, means the period during which the person must participate in an interlock program for the purposes of a disqualification suspension order.

s 25A: Ins 2002 No 72, Sch 1 [3]. Am 2004 No 17, Sch 2.3 [3].

25B Subdivision does not apply to habitual traffic offenders

This Subdivision does not apply in respect of a person convicted of an alcohol-related major offence who is declared to be an habitual traffic offender by operation of section 28 (whether or not as a result of the conviction).

ss 25B–25H: Ins 2002 No 72, Sch 1 [3].

25C Disqualification period may be suspended for participation in interlock program

If a court convicts a person of an alcohol-related major offence and the person is disqualified from holding a driver licence by or under section 25 (2) or (3) for a period (the disqualification period), the court may order that the disqualification of the person be suspended if the person participates in an interlock program for:

(a)  the minimum interlock participation period specified in column 2 of Schedule 1A set out opposite the category of offender specified in column 1 of that Schedule to which the person belongs, or

(b)  such greater interlock participation period as the court may order.

ss 25B–25H: Ins 2002 No 72, Sch 1 [3].

25D When person may participate in interlock program

A person in respect of whom a disqualification suspension order is made is entitled to participate in an interlock program only if:

(a)  the disqualification compliance period specified in column 3 of Schedule 1A set out opposite the category of offender specified in column 1 of that Schedule to which the person belongs has expired, and

(b)  the person is issued with an interlock driver licence by the Authority under the Road Transport (Driver Licensing) Act 1998.

ss 25B–25H: Ins 2002 No 72, Sch 1 [3].

25E Entitlement to apply for interlock driver licence

(1)  A convicted person in respect of whom a disqualification suspension order is made is entitled to apply for an interlock driver licence despite his or her disqualification:

(a)  if the application is made before the expiry of the disqualification compliance period applicable to the person—no earlier than 28 days before the expiry of that period, or

(b)  at any time after the expiry of the disqualification compliance period but before the expiry of the disqualification period.

(2)  However, nothing in this Subdivision confers a right on a person in respect of whom a disqualification suspension order is made to be issued with an interlock driver licence.

ss 25B–25H: Ins 2002 No 72, Sch 1 [3].

25F When disqualification suspension order has effect

(1) When order operates to suspend disqualification A disqualification suspension order operates to suspend a disqualification while the person in respect of whom the order was made participates in an interlock program.

(2) Early termination of order A disqualification suspension order ceases to have effect before the expiry of the interlock participation period if the person ceases to participate in an interlock program.

(3) Effect of early termination of order If a disqualification suspension order ceases to have effect before the expiry of the interlock participation period, the person to whom the order relates is disqualified from holding a driver licence for the period equal to the difference between:

(a)  the disqualification period originally applicable to the person, and

(b)  the period of disqualification that had already been completed immediately before the disqualification suspension order operated to suspend the original disqualification.

(4) Effect of suspension of interlock driver licence on order If the interlock driver licence of a person in respect of whom a disqualification suspension order is made is suspended during the interlock participation period:

(a)  the order does not cease to have effect only because the driver licence is suspended, and

(b)  the period of suspension is to be added to the interlock participation period applicable to the person for the purposes of determining when the interlock participation period expires.

ss 25B–25H: Ins 2002 No 72, Sch 1 [3].

25G Participation in an interlock program

(1) Commencement of participation in interlock program and interlock participation period A person in respect of whom a disqualification suspension order is made commences to participate in an interlock program on the date on which the person is issued with an interlock driver licence. The interlock participation period applicable to the person also commences on that date.

(2) Early cessation of participation A person in respect of whom a disqualification suspension order is made ceases to participate in an interlock program if and when:

(a)  the person is convicted by a court of a major offence during the interlock participation period and the court does not order that the disqualification suspension order continue in effect despite the conviction, or

(b)  the person ceases to hold an interlock driver licence before the expiry of the interlock participation period (whether by reason of cancellation of the licence or otherwise).

ss 25B–25H: Ins 2002 No 72, Sch 1 [3].

25H Effect of successful participation in interlock program

If a disqualification suspension order does not cease to have effect before the expiry of the interlock participation period:

(a)  the order ceases to have effect on the expiry of that period, and

(b)  the disqualification period in respect of which the order was originally made is taken to have expired on the expiry of the interlock participation period.

ss 25B–25H: Ins 2002 No 72, Sch 1 [3].

Subdivision 3 Effect of disqualification

pt 3, div 3, sdiv 3, hdg: Ins 2002 No 72, Sch 1 [4].

26 Effect of disqualification (cf Traffic Act, s 10AA)

(1)  If, as a consequence of being convicted of an offence by a court under the road transport legislation, a person is disqualified (whether or not by an order of the court) from holding a driver licence, the disqualification operates to cancel, permanently, any driver licence held by the person at the time of his or her disqualification.

(2)  A disqualification to hold an Australian driver licence held under a law in force in another State or internal Territory by a person who holds a driver licence issued in this State is, for the purposes of subsection (1), to be treated as if it were a disqualification to hold the driver licence issued in this State.

(3)  A person who is so disqualified must:

(a)  if present at the court (being a court in this State) and in possession of his or her driver licence—surrender the licence to the court immediately after being convicted, or

(b)  if present at the court (being a court in this State) but not in possession of the licence or if not present at the court—surrender the licence to the Authority as soon as practicable after being convicted, or

(c)  if the person is to be treated under subsection (2) as having been disqualified from holding a driver licence issued in this State—surrender the licence to the Authority as soon as practicable after being disqualified from holding the Australian driver licence referred to in that subsection.

Maximum penalty: 20 penalty units.

(4)  Subject to the provisions of Subdivision 2, a person who is disqualified from holding a driver licence cannot obtain another driver licence during the period of disqualification.

(5)  If a licence is surrendered to the court, the licence is to be delivered to the Authority.

(6)  Any period for which a stay of execution is in force under section 63 of the Crimes (Local Courts Appeal and Review) Act 2001 is not to be taken into account when calculating the length of a period of disqualification under this Division.

s 26: Am 2001 No 121, Sch 2.180 [1]; 2002 No 72, Sch 1 [5].

Division 4 Habitual traffic offenders

27 Relevant offences (cf Traffic Act, s 10EA (1))

(1)  In this Division, a relevant offence means:

(a)  any of the following offences committed after the commencement of this Division of which a person has been convicted by a court in this State:

(i)  a major offence,

(ii)  a prescribed speeding offence,

(iii)  an offence under section 25 (3) of the Road Transport (Driver Licensing) Act 1998,

(iv)  an offence under section 25A (1), (2) or (3) of the Road Transport (Driver Licensing) Act 1998, or

(b)  an offence committed after the commencement of this Division of which a person has been convicted by a court in another State or Territory that would be an offence of the kind referred to in paragraph (a) if it had been committed in this State, or

(c)  a relevant offence within the meaning of section 10EA of the Traffic Act 1909 as in force immediately before its repeal.

(2)  A relevant offence includes an offence of the kind referred to in subsection (1) (a) in respect of which the charge is found proven, or a person is found guilty, (but without proceeding to a conviction) under section 10 of the Crimes (Sentencing Procedure) Act 1999, or section 556A of the Crimes Act 1900, if the offence would, if it were a relevant offence, give rise to the declaration of the person under this Division as an habitual traffic offender. In that case, a reference in this Division to the conviction of the person for a relevant offence includes a reference to the making of an order with respect to the person.

s 27: Am 1999 No 94, Sch 4.52 [2]; 2000 No 93, Sch 2.44 [2]–[4].

28 Declaration of persons as habitual traffic offenders (cf Traffic Act, s 10EA (2))

A person is, by this section, declared to be an habitual traffic offender if:

(a)  a court in this State convicts the person of a relevant offence, and

(b)  the person has, in the period of 5 years before the conviction, also been convicted of at least 2 other relevant offences committed on different occasions.

29 Warning to be given to persons liable to be declared habitual traffic offenders (cf Traffic Act, s 10EA (14))

(1)  The Authority is required to give written warnings to the holders of driver licences who are liable to be declared to be habitual traffic offenders if they are convicted of another relevant offence.

(2)  The declaration of an habitual traffic offender is not invalid merely because of a failure to give the warning, but any such failure may be taken into account by a court when determining whether a declaration should be quashed.

30 Period of disqualification of habitual traffic offender (cf Traffic Act, s 10EA (4)–(7) and (10)–(13))

(1)  If a person is declared by section 28 to be an habitual traffic offender, the person is disqualified by the declaration (and without any specific order of a court) for a period of 5 years from holding a driver licence, except as provided by this Division.

(2)  If the court that convicts the person of the offence giving rise to the declaration thinks fit, the court may order a longer period of disqualification (including disqualification for life).

(3)  If the court that convicts the person of the offence giving rise to the declaration determines that a 5-year disqualification is a disproportionate and unjust consequence having regard to the total driving record of the person and the special circumstances of the case, the court may order a shorter period of disqualification (but not shorter than 2 years).

(4)  If a court orders a shorter or longer period of disqualification, the court must state its reasons for doing so.

(5)  A declaration of an habitual traffic offender ceases to be in force when the period of disqualification imposed by the declaration is completed.

(6)  The period of any disqualification under this Division does not commence until all other disqualifications, and all other periods of licence cancellation or suspension, imposed on the person by or under this or any other Act have been completed.

(7)  Further declarations have effect under this Division even though they occur while an existing declaration is in force, and the consequent periods of disqualification do not commence until all existing disqualifications under this Division have been completed. It does not matter that some of the relevant offences giving rise to a further declaration also gave rise to an earlier declaration.

(8)  If, while an existing disqualification under this Division is in force, the person is disqualified by a court or automatically under another provision of this or any other Act, that further disqualification does not commence until all existing disqualifications under this Division have been completed.

(9)  Any period for which a stay of execution is in force under section 63 of the Crimes (Local Courts Appeal and Review) Act 2001 is not to be taken into account when calculating the length of a period of disqualification under this Division.

s 30: Am 2001 No 121, Sch 2.180 [2].

31 Quashing of declaration and bar against appeals (cf Traffic Act, s 10EA (3), (7) and (8))

(1)  The declaration of a person as an habitual traffic offender by section 28 may be quashed by a court that convicts the person of a relevant offence (at the time of the conviction or at a later time) if it determines that the disqualification imposed by the declaration is a disproportionate and unjust consequence having regard to the total driving record of the person and the special circumstances of the case.

(2)  If a court quashes a declaration under this section, the court must state its reasons for doing so.

(3)  However, a declaration or disqualification under this Division cannot be appealed to any court whether under this or any other Act.

32 Disqualification in addition to any other penalty (cf Traffic Act, s 10EA (9))

A disqualification under this Division is in addition to any penalty imposed for the offence giving rise to the declaration.

Division 5 Suspension of licences and visiting driver privileges

33 Suspension of licence by Commissioner of Police (cf Traffic Act, s 10B)

(1)  The Commissioner of Police may suspend a driver licence of any driver, for a period not exceeding 14 days, who:

(a)  is in the Commissioner’s opinion an incompetent, reckless or careless driver, or

(b)  is found under the influence of liquor.

(2)  The Commissioner of Police must immediately:

(a)  notify the Authority that the Commissioner has suspended the licence and the grounds for the suspension, and

(b)  report to the Authority whether in the Commissioner’s opinion a further suspension or the cancellation of the licence is warranted or is desirable in the interest of public safety.

(3)  A driver licence that is suspended under this section is to be surrendered by the holder and forwarded to the Authority with the notification of the suspension.

34 Immediate suspension of licence in certain circumstances (cf Traffic Act, s 10C)

(1)  If a person is charged by a police officer with:

(a)  an offence involving the death of, or grievous bodily harm to, another person caused by the use of a motor vehicle, being an offence that comprises:

(i)  the crime of murder or manslaughter, or

(ii)  an offence under section 33, 35 (1) (b), 52A or 54 of the Crimes Act 1900, or

(b)  an offence under section 9 (3) or (4), 15 (4), 16 or 22 (2) of the Road Transport (Safety and Traffic Management) Act 1999,

the same or another police officer may, at any time within 48 hours after the person has been charged, give the person a suspension notice.

(1A)  If it appears to a police officer that a person has committed an offence under the Road Transport (Safety and Traffic Management) Act 1999 (other than a camera recorded offence within the meaning of section 43 of this Act) of exceeding a speed limit prescribed under that Act by more than 45 kilometres per hour, the same or another police officer may, at any time within 48 hours of:

(a)  the person being served with a penalty notice for the offence under Division 1, or

(b)  the person being charged with the offence,

give the person a suspension notice.

(2)  For the purposes of this section, a suspension notice is a notice, in a form approved by the Authority:

(a)  if the person is charged with an offence referred to in subsection (1) or (1A)—informing the person that any driver licence held by the person is suspended from a date specified in the notice, or (if the notice so specifies) immediately on receipt of the notice, until the charge is heard and determined by a court (or until the charge is withdrawn), and

(b)  if the person is served with a penalty notice for an offence referred to in subsection (1A)—informing the person that any driver licence held by the person is suspended from a date specified in the notice, or (if the notice so specifies) immediately on receipt of the notice, until whichever of the following happens first:

(i)  a period of 6 months elapses after the date on which the offence is alleged to have been committed,

(ii)  if the person elects to have the matter determined by a court in accordance with Part 3 of the Fines Act 1996—the matter is heard and determined by a court or a decision is made not to take or continue proceedings against the person,

(iii)  a decision is made not to enforce the penalty notice, and

(c)  informing the person of the right of review in accordance with section 48 (Notice of decision and review rights to be given by administrators) of the Administrative Decisions Tribunal Act 1997 or alternative appeal right, and

(d)  requiring the person:

(i)  to surrender any such licence, by a date specified in the notice, to a police officer, or

(ii)  if the notice so specifies—to surrender any such licence in the person’s possession immediately to the police officer who gave the person the notice.

(3)  Any driver licence held by a person to whom a suspension notice is given is suspended in accordance with the terms of the notice.

(4)  Particulars of each suspension notice given under this section are to be forwarded to the Authority immediately after the notice is given.

(5)  A person who is given a suspension notice must surrender his or her driver licence in compliance with the notice.

Maximum penalty: 20 penalty units.

(6)  If, on the determination of the charge by a court, the person is disqualified from holding or obtaining a licence for a specified time:

(a)  the court must take into account the period of suspension under this section when deciding whether to make any order under section 25, and

(b)  to the extent (if any) that the court so orders, a suspension under this section may be regarded as satisfying all or part of any mandatory minimum period of disqualification required by that section to be imposed when the charge is proved.

(7)  For the purposes of this section:

(a)  a person is charged with an offence when particulars of the offence are notified in writing to the person by a police officer, and

(b)  a charge is withdrawn when the person charged is notified in writing of that fact by a police officer or when it is withdrawn before the court, and

(c)  a charge is determined by a court when the offence is proved or the information is dismissed, and

(d)  a decision is made not to take or continue proceedings against a person when the person is notified in writing of that fact by a police officer or when the proceedings are discharged by the court, and

(e)  a decision is made not to enforce a penalty notice in relation to a person when the person is notified in writing of that fact by:

(i)  a police officer, or

(ii)  an appropriate officer for the penalty notice within the meaning of Part 3 of the Fines Act 1996, or

(iii)  a member of staff of the State Debt Recovery Office.

(8)  In this section:

grievous bodily harm has the same meaning as it has in the Crimes Act 1900.

s 34: Am 2004 No 59, Sch 1 [1]–[4].

35 Suspension of driving privileges of visiting driver (cf Traffic Act, s 10D)

(1)  In this section:

authorised visiting driver means a person:

(a)  who is not the holder of a driver licence issued in New South Wales, and

(b)  who, being the holder of a licence or permit issued in a place outside New South Wales, has the benefit of any provision of the road transport legislation conferring on the person authority to drive in New South Wales.

grievous bodily harm has the same meaning as it has in the Crimes Act 1900.

suspension notice, in relation to an authorised visiting driver who is charged with an offence referred in subsection (2) or (2A), or served with a penalty notice for an offence referred to in subsection (2A), means a notice, in a form approved by the Authority:

(a)  if the driver is charged with an offence referred to in subsection (2) or (2A)—informing the driver that the driver’s authority to drive in New South Wales is suspended from a date specified in the notice, or (if the notice so specifies) immediately on receipt of the notice, until the charge is heard and determined by a court (or until the charge is withdrawn), and

(b)  if the driver is served with a penalty notice for an offence referred to in subsection (2A)—informing the driver that the driver’s authority to drive in New South Wales is suspended from a date specified in the notice, or (if the notice so specifies) immediately on receipt of the notice, until whichever of the following happens first:

(i)  6 months elapses after the date on which the offence is alleged to have been committed,

(ii)  if the driver elects to have the matter determined by a court in accordance with Part 3 of the Fines Act 1996—the matter is heard and determined by a court or a decision is made not to take or continue proceedings against the driver,

(iii)  a decision is made not to enforce the penalty notice, and

(c)  informing the driver of the right of review in accordance with section 48 (Notice of decision and review rights to be given by administrators) of the Administrative Decisions Tribunal Act 1997 or alternative appeal right.

(2)  If an authorised visiting driver is charged by a police officer with:

(a)  an offence involving the death of, or grievous bodily harm to, another person caused by the use of a motor vehicle, being an offence that comprises:

(i)  the crime of murder or manslaughter, or

(ii)  an offence under section 33, 35 (1) (b), 52A or 54 of the Crimes Act 1900, or

(b)  an offence under section 9 (3) or (4), 15 (4), 16 or 22 (2) of the Road Transport (Safety and Traffic Management) Act 1999,

the same or another police officer may, at any time within 48 hours after the authorised visiting driver has been charged, give the authorised visiting driver a suspension notice.

(2A)  If it appears to a police officer that an authorised visiting driver has committed an offence under the Road Transport (Safety and Traffic Management) Act 1999 (other than a camera recorded offence within the meaning of section 43 of this Act) by exceeding a speed limit prescribed under that Act by more than 45 kilometres per hour, the same or another police officer may, at any time within 48 hours of:

(a)  the authorised visiting driver being served with a penalty notice for the offence under Division 1, or

(b)  the authorised visiting driver being charged with the offence,

give the authorised visiting driver a suspension notice.

(3)  Any authority of a person to whom a suspension notice is given to drive in New South Wales is suspended in accordance with the terms of the notice.

(4)  Particulars of each suspension notice given under this section are to be forwarded to the Authority immediately after the notice is given.

(5)  For the purposes of this section:

(a)  a person is charged with an offence when particulars of the offence are notified in writing to the person by a police officer, and

(b)  a charge is withdrawn when the person charged is notified in writing of that fact by a police officer or when it is withdrawn before the court, and

(c)  a charge is determined by a court when the offence is proved or the information is dismissed, and

(d)  a decision is made not to take or continue proceedings against a person when the person is notified in writing of that fact by a police officer or the proceedings are discharged by the court, and

(e)  a decision is made not to enforce a penalty notice in relation to a person when the person is notified in writing of that fact by:

(i)  a police officer, or

(ii)  an appropriate officer for the penalty notice within the meaning of Part 3 of the Fines Act 1996, or

(iii)  a member of staff of the State Debt Recovery Office.

s 35: Am 2004 No 59, Sch 1 [5]–[9].

Division 6 Downgrading of licences

36 Downgrading of driver licences (cf Traffic Act, s 11AE)

(1)  If a driver licence is cancelled as a special measure and the offence or offences (or alleged offence or offences) that gave rise to the cancellation arose wholly or mainly out of the use of a motor vehicle or trailer of a class prescribed for the purposes of this section, the Authority may issue the former licensee with another driver licence in substitution for the cancelled driver licence that does not authorise the driving of motor vehicles or trailers of that class.

(2)  For the purposes of this section, a driver licence is cancelled as a special measure if it is cancelled by:

(a)  the operation of the road transport legislation as a result of the imposition on the licensee of a period of disqualification from holding a driver licence, or

(b)  the Authority under the Road Transport (Driver Licensing) Act 1998 because of:

(i)  the licensee’s driving record of offences or alleged offences, or

(ii)  an alleged speeding offence referred to in section 33 of the Road Transport (Driver Licensing) Act 1998.

(3)  The regulations may make provision for or with respect to the exercise by the Authority of its power under this section.

(4)  Nothing in this section:

(a)  limits any discretion of the Authority under the road transport legislation to decline to issue a driver licence to a person or cancel a driver licence, or

(b)  permits the issue of any driver licence to a person who for the time being is disqualified from holding one.

Division 7 Compensation orders by courts in respect of offences under road transport legislation

37 Court may order compensation for damages and other losses (cf Traffic Act, s 14)

A court that convicts a person of an offence under the road transport legislation may order any person to pay such an amount as compensation for loss of time or expense incurred in consequence of the offence of which the defendant was convicted as the court thinks fit.

38 Compensation for loss of time (cf Traffic Act, s 15)

(1)  If an information or complaint is laid or made by any person (other than a police officer or the Authority) for any offence under the road transport legislation and the proceedings are dismissed or withdrawn, the court concerned may, if it thinks fit, order that the person bringing the proceedings pay to the defendant, in addition to any costs, such compensation for loss of time or otherwise as seems reasonable.

(2)  Subsection (1) extends to a court hearing an appeal in any such proceedings.

Division 8 Detention, impounding and forfeiture of vehicles

39 Removal and impounding of vehicles used for certain offences (cf Traffic Act, s 4BB)

(1)  A police officer who reasonably believes that a motor vehicle:

(a)  is being or has (on that day or during the past 10 days) been operated on a road or road related area so as to commit an offence under section 40 or 41 of the Road Transport (Safety and Traffic Management) Act 1999, or

(b)  is the subject of a period of impounding, or the subject of forfeiture, under section 40,

may seize and take charge of the motor vehicle and cause it to be removed to a place determined by the Commissioner of Police.

(2)  A motor vehicle may be seized under subsection (1) from:

(a)  a public place, or

(b)  any other place, with the consent of the owner or occupier of the place or under the authority of a search warrant issued under section 41.

(3)  For the purpose of exercising the powers conferred by subsection (1), a police officer may cause any locking device or other feature of the motor vehicle concerned that is impeding the exercise of those powers to be removed, dismantled or neutralised and may, if the driver or any other person will not surrender the keys to the vehicle, start the vehicle by other means.

(4)  Any motor vehicle removed to a place in accordance with subsection (1) may, subject to the regulations, be impounded at that place or may be moved to and impounded at any other place determined by the Commissioner of Police.

(5)  A motor vehicle that may be removed under subsection (1) or (4):

(a)  may be moved by its being driven, whether or not under power, or by its being towed or pushed, or in any other manner whatever, and

(b)  may be moved by one or more police officers or, at the direction of a police officer, by persons engaged by the Commissioner of Police, and may be impounded at premises under the control of the Commissioner or of another authority or person.

(6)  Schedule 1 has effect with respect to a motor vehicle impounded under this section.

(7)  The regulations may make provision for or with respect to requiring the responsible person for or driver of a motor vehicle to pay a fee in relation to the towing of the vehicle under this section. The whole or any part of the fee that is unpaid may be recovered from the responsible person or driver of the motor vehicle by the Commissioner of Police as a debt due to the Crown in any court of competent jurisdiction. A certificate in writing given by a police officer as to the fact and cost of towing is evidence of those matters.

(8)  In this section:

public place includes any place that members of the public are entitled to use.

40 Impounding or forfeiture of vehicles on finding of guilt or admission of offence (cf Traffic Act, s 4BC)

(1)  A motor vehicle used in connection with an offence under section 40 or 41 of the Road Transport (Safety and Traffic Management) Act 1999, being in either case the first offence by the offender under the provision concerned, that any court finds that a person is guilty of is by the finding liable to be impounded for a period of 3 months, unless the court by order otherwise directs under subsection (3).

(2)  A motor vehicle used in connection with an offence under section 40 or 41 of the Road Transport (Safety and Traffic Management) Act 1999, being in either case a second or subsequent offence by the offender under the provision concerned, that any court finds that a person is guilty of is by the finding liable to be forfeited to the Crown, unless the court by order otherwise directs under subsection (3).

(3)  The court that found a person to be guilty of an offence under section 40 or 41 of the Road Transport (Safety and Traffic Management) Act 1999 may, for reasons of the avoidance of any undue hardship to any person or other injustice perceived by the court, by its order direct that a period of impounding imposed by this section be reduced or dispensed with, or that a forfeiture imposed by this section be commuted to a period of impounding.

(4)  The period for which a vehicle was impounded under section 39 is to be reckoned as counting towards a period of impounding imposed by or under this section.

(5)  Any impounding or forfeiture under this section is in addition to any other penalty that may be imposed for the offence concerned, but for the purposes of any rights of appeal against a penalty so imposed by the court finding the offence to be proven, the impounding or forfeiture is taken to be, or to be part of, that penalty.

(6)  For the purposes of this section, payment of the amount specified:

(a)  in a penalty notice issued in respect of an offence under section 41 of the Road Transport (Safety and Traffic Management) Act 1999, or

(b)  in any process issued subsequent to such a penalty notice,

as the amount that is payable in order to dispose of the alleged offence without having it dealt with by a court, has the same effect as a finding by a court that the person was guilty of the offence.

(7)  Schedule 1 has effect with respect to a motor vehicle impounded or forfeited under this section.

s 40: Am 2000 No 93, Sch 2.44 [5]–[8].

41 Search warrants (cf Traffic Act, s 4BD)

(1)  A police officer may apply to an authorised justice for a search warrant if the police officer has reasonable grounds for believing that there is or, within 72 hours, will be on any premises a motor vehicle that has been operated as referred to in section 39.

(2)  An authorised justice to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising a police officer named in the warrant:

(a)  to enter the premises, and

(b)  to search the premises for such a motor vehicle, and

(c)  to seize such a motor vehicle, and otherwise deal with it, in accordance with section 39.

(3)  Part 3 of the Search Warrants Act 1985 applies to a search warrant issued under this section.

(4)  In this section, authorised justice and premises have the same meanings as they have in the Search Warrants Act 1985.

Division 9 Imputed liability for certain offences under road transport legislation

42 Directors and managers liable for offences committed by corporations

(1)  If a corporation contravenes a provision of the road transport legislation, each person who:

(a)  is a director of the corporation, or

(b)  is concerned in the management of the corporation,

is to be treated as having contravened the same provision if the person knowingly authorised or permitted the contravention.

(2)  A person may, under this section, be proceeded against and convicted for a contravention of a provision of the road transport legislation whether or not the corporation has been proceeded against or convicted for a contravention of the same provision.

(3)  Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against the road transport legislation.

43 Liability of responsible person for vehicle for designated offences (cf Traffic Act, s 18A)

(1) Responsible person for vehicle taken to have committed designated offences If a designated offence occurs in relation to any registrable vehicle, the person who at the time of the occurrence of the offence is the responsible person for the vehicle is taken to be guilty of an offence under the provision concerned in all respects as if the responsible person were the actual offender guilty of the designated offence unless:

(a)  in any case where the offence is dealt with under Division 1—the person satisfies the authorised officer under section 15 that:

(i)  the vehicle was at the relevant time a stolen vehicle or a vehicle illegally taken or used, or

(ii)  the actual offender would have a defence to any prosecution for the designated offence brought against the offender, or

(b)  in any other case—the person satisfies the court hearing the proceedings for the offence that:

(i)  the vehicle was at the relevant time a stolen vehicle or a vehicle illegally taken or used, or

(ii)  the actual offender would have a defence to any prosecution for the designated offence brought against the offender.

(2) Liability of actual offender unaffected Nothing in this section affects the liability of the actual offender. However, if a penalty has been imposed on or recovered from any person in relation to any designated offence, no further penalty may be imposed on or recovered from any other person in relation the offence.

(3) When responsible person not liable for parking offence Despite subsection (1), the responsible person for a vehicle is not guilty of a parking offence by the operation of that subsection if:

(a)  in any case where such an offence is dealt with under Division 1—the responsible person:

(i)  within 21 days after service on the responsible person of a penalty notice alleging that the responsible person has been guilty of such offence, supplies by statutory declaration to the authorised officer under section 15 the name and address of the person who was in charge of the vehicle at all relevant times relating to the parking offence concerned, or

(ii)  satisfies the authorised officer that the responsible person did not know and could not with reasonable diligence have ascertained such name and address, or

(b)  in any other case—the responsible person:

(i)  within 21 days after service on the responsible person of a summons in respect of the offence, supplies by statutory declaration to the informant the name and address of the person who was in charge of the vehicle at all relevant times relating to the parking offence concerned, or

(ii)  satisfies the court hearing the proceedings for the offence that the responsible person did not know and could not with reasonable diligence have ascertained such name and address.

(4) Duty to inform if person not driver of vehicle committing camera recorded offence A person who:

(a)  is served with a penalty notice or a summons in respect of a camera recorded offence, and

(b)  was not the driver of the vehicle to which the offence relates at the time the offence occurred,

must, within 21 days after service of the notice or summons, supply by statutory declaration to the authorised officer under section 15 (in the case of a notice) or the informant (in the case of a summons) the name and address of the person who was in charge of the vehicle at the time the offence occurred.

(4A)  For the purposes of subsections (3) and (4), it is presumed that a penalty notice served on a person by post is served on the person 21 days after it is posted, unless the person establishes that it was not received by the person, or was not received by the person within the 21-day period.

(5) Offence—failure to comply with subsection (4) A person must comply with subsection (4) unless the person satisfies:

(a)  in the case of a notice—the authorised officer, or

(b)  in the case of a summons—the court dealing with the camera recorded offence, or

(c)  in either case—the court dealing with the offence of failing to comply with subsection (4),

that he or she did not know and could not with reasonable diligence have ascertained that name and address.

Maximum penalty:

(a)  if the offence relates to a vehicle registered otherwise than in the name of a natural person—20 penalty units, or

(b)  in any other case—5 penalty units.

(6) Offence—false nomination of person in charge of vehicle A person must not, in a statutory declaration supplied under subsection (4), falsely nominate another person as the person who was in charge of the vehicle at the time the offence occurred.

Maximum penalty:

(a)  if the offence relates to a vehicle registered otherwise than in the name of a natural person—10 penalty units, or

(b)  in any other case—5 penalty units.

(7) When responsible person for vehicle not liable for camera recorded offence A person who is served with a penalty notice or a summons in respect of a camera recorded offence is not guilty of that offence by operation of this section if the person:

(a)  complies with subsection (4) in relation to the offence, or

(b)  satisfies the authorised officer (in the case of a notice) or the court (in the case of a summons) that he or she did not know and could not with reasonable diligence have ascertained the name and address of the person who was in charge of the vehicle at the time the offence occurred.

(8) Statutory declaration is evidence (unless contrary evidence is adduced) A statutory declaration under subsection (3) or (4), if produced in any proceedings against the person named in the declaration and in respect of the designated offence concerned, is evidence (unless contrary evidence is adduced):

(a)  in the case of a statutory declaration relating to a parking offence—that the person was in charge of the vehicle at all relevant times relating to the parking offence, or

(b)  in the case of a statutory declaration relating to a camera recorded offence—that the person was the driver of the vehicle at the time the offence occurred.

(9) Statutory declaration to relate to one designated offence A statutory declaration that relates to more than one designated offence does not constitute a statutory declaration under, or for the purposes of, subsection (3) or (4).

(10) Section does not derogate from any other law The provisions of this section are in addition to and not in derogation of any other provisions of this or any other Act.

(11) Definitions In this section:

camera recorded offence means:

(a)  a public transport lane offence as defined in section 57B of the Road Transport (Safety and Traffic Management) Act 1999 in respect of which the penalty notice or the summons indicates that the offence was detected by an approved traffic lane camera device (within the meaning of that Act), or

(b)  a traffic light offence as defined in section 57 of the Road Transport (Safety and Traffic Management) Act 1999 in respect of which the penalty notice or the summons indicates that the offence was detected by an approved camera detection device (within the meaning of that Act), or

(c)  a speeding offence in respect of which the penalty notice or the summons indicates that the offence was detected by an approved speed measuring device and recorded by an approved camera recording device (within the meaning of the Road Transport (Safety and Traffic Management) Act 1999).

designated offence means:

(a)  a camera recorded offence, or

(b)  a parking offence.

parking offence means any offence of standing or parking a motor vehicle or trailer or of causing or permitting a motor vehicle or trailer to stand, wait or be parked in contravention of any regulation made under the Road Transport (Safety and Traffic Management) Act 1999.

s 43: Am 2002 No 11, Sch 1 [1] [2]; 2004 No 22, Sch 2 [1]–[6].

Division 10 Service of documents

44 Service of documents on persons generally

(1)  Any document that is authorised or required by or under the road transport legislation to be given to or served on any person (other than a corporation) may be given or served:

(a)  personally, or

(b)  by means of a letter addressed to the person and sent by post to the person’s business or home address, or

(c)  by means of a letter addressed to the person and left at the person’s business or home address with a person who appears to be of or above the age of 16 years and to reside at that address.

(2)  Any document that is authorised or required by or under the road transport legislation to be given to or served on any person (being a corporation) may be given or served:

(a)  by means of a letter addressed to the corporation and sent by post to the address of any of its registered offices, or

(b)  by means of a letter addressed to the corporation and left at the address of any of the corporation’s registered offices with a person who appears to be of or above the age of 16 years and to be employed at that address.

(3)  Despite subsections (1) and (2), the regulations may:

(a)  provide for additional means of giving or serving documents, or

(b)  provide that a document of a class specified by the regulations be given or served only in the manner prescribed by the regulations, or

(c)  provide for the date on which service of a document is taken to have been effected.

(4)  This section does not apply to a penalty notice to which section 16 applies.

45 Lodgment of documents with Authority

(1)  If provision is made by or under the road transport legislation for the lodging of a notice or other document with the Authority, it is sufficient if the notice or other document is sent by post to, or lodged at, an office of the Authority.

(2)  Despite subsection (1), the regulations may:

(a)  provide for additional means of lodging a notice or other document with the Authority, or

(b)  provide that a notice or other document of a class specified by the regulations be lodged with the Authority only in the manner prescribed by the regulations, or

(c)  provide for the date on which lodgment of a notice or other document is taken to have been effected.

(3)  In this section, lodgment of a notice or other document includes the giving of a notice or other document.

Division 11 Evidentiary provisions in relation to road transport legislation

46 Certificate evidence and other evidentiary provisions (cf Traffic Act, s 12)

(1)  A document that appears to be signed on behalf of the Authority certifying any of the following matters is admissible as evidence:

(a)  a matter that appears in or can be calculated from the register of written off and wrecked motor vehicles kept by the Authority under Division 3 of Part 4,

(b)  a matter that appears in or can be calculated from the demerit points register or any driver licence register kept by the Authority under the Road Transport (Driver Licensing) Act 1998,

(c)  a matter that appears in or can be calculated from (or does not appear or cannot be calculated from) the Register of Registrable Vehicles kept by the Authority under the Road Transport (Vehicle Registration) Act 1997,

(d)  a matter that appears in or can be calculated from another record kept by the Authority under the road transport legislation,

(e)  a matter that appears in a towing authorisation within the meaning of the Tow Truck Industry Act 1998,

(f)  a matter that appears in any record, kept by or on behalf of the Tow Truck Authority, relating to the operation of a job allocation scheme established under Part 4 of the Tow Truck Industry Act 1998.

(2)  Any such document may:

(a)  certify particulars by reference to a specified date or period, and

(b)  certify particulars that appear in or can be calculated from (or do not appear in or cannot be calculated from) records maintained under section 12 of the Traffic Act 1909 at any time before it was repealed by the Road Transport Legislation Amendment Act 1999.

(3)  A court may admit as evidence a document that is issued under the law of another jurisdiction that relates to:

(a)  whether a person has or does not have an Australian driver licence or other authority to drive a motor vehicle, the extent of the authority conferred by a licence or other authority and any conditions of that licence or other authority, or

(b)  whether a person is or was disqualified from holding an Australian driver licence or other authority to drive a motor vehicle and the circumstances of any such disqualification, or

(c)  any offence found to have been committed by a person in relation to the driving or use of a motor vehicle or in relation to driver licensing, including any penalty imposed or other order made in respect of that offence, or

(d)  demerit points incurred by a person.

(4)  A court may admit as evidence a document that is issued under a law of another jurisdiction that corresponds with this section and that relates to:

(a)  the registration or non-registration of a registrable vehicle, or

(b)  a person recorded on the Register of Registrable Vehicles kept by the Authority under the Road Transport (Vehicle Registration) Act 1997 as a registered operator of a registrable vehicle, or

(c)  the GCM, GVM, load capacity or identification of a motor vehicle, or

(d)  any other matter relating to the use of registrable vehicles on roads or road related areas.

(5)  The court must accept the documents as proof of the facts stated in them if there is no evidence to the contrary.

(6)  A court may admit into evidence other documents prescribed by the regulations in the circumstances set out in the regulations.

(7)  In any proceedings in any court, proof that a registrable vehicle does not have a number-plate on it issued under the Road Transport (Vehicle Registration) Act 1997 Act is evidence that the vehicle is not registered if there is no evidence to the contrary.

(7A)  A document that appears to be signed on behalf of the Commissioner of Police certifying that a penalty notice was posted to a person on a specified date is admissible in any proceedings and is evidence of the matters stated in it unless there is evidence to the contrary.

(8)  In this section:

GCM (gross combination mass) has the same meaning as it has in the Road Transport (Vehicle Registration) Act 1997.

GVM (gross vehicle mass) has the same meaning as it has in the Road Transport (Vehicle Registration) Act 1997.

s 46: Am 1999 No 61, Sch 2 [2]; 2002 No 11, Sch 1 [5].

Division 12 Proceedings for offences under road transport legislation

47 Proceedings for offences (cf Traffic Act, s 19)

(1)  Proceedings for an offence against the road transport legislation are to be dealt with summarily before a Local Court.

(2)  Despite any other Act, proceedings for an operator onus offence may be commenced within 1 year after the date of the alleged commission of the offence.

(3)  In this section:

operator onus offence means a designated offence within the meaning of section 43.

s 47: Am 2001 No 121, Sch 2.180 [3]; 2002 No 11, Sch 1 [6]; 2004 No 22, Sch 2 [7].

Division 13 Review of decisions under road transport legislation

48 Review by Administrative Decisions Tribunal of certain decisions made under road transport legislation (cf Traffic Act, s 10E)

(1)  A person aggrieved by any of the following decisions made in relation to the person may apply to the Administrative Decisions Tribunal for a review of the decision:

(a)  a decision of a police officer under section 34 to suspend the person’s driver licence,

(b)  a decision by a police officer under section 35 to suspend the person’s authority to drive in New South Wales,

(c)  a decision of the Commissioner of Police under section 40 (2) of the Road Transport (Safety and Traffic Management) Act 1999 refusing to grant an approval under that subsection or imposing any condition on any such approval,

(d)  any other decision under the road transport legislation that belongs to a class of decisions prescribed by the regulations for the purposes of this subsection.

(2)  An application for a review in respect of a decision referred to in subsection (1) (a) or (b) must be made before the charge that occasioned the suspension has been heard and determined by a court or withdrawn.

(3)  Despite anything to the contrary in section 63 of the Administrative Decisions Tribunal Act 1997, in determining an application for a review of a decision referred to in subsection (1) (a) or (b), the Tribunal:

(a)  is not to vary or set aside a decision to suspend a driver licence or authority to drive unless it is satisfied that there are exceptional circumstances justifying a lifting or variation of the suspension, and

(b)  is not, for the purposes of any such application, to take into account the circumstances of the offence with which the person making the application is charged.

(4)  Despite subsection (1), a regulation referred to in subsection (1) (d) prescribing a class of decisions may limit the class of persons who may make an application for a review of a decision referred to in the subsection.

(5)  A regulation referred to in subsection (1) (d) prescribing a class of decisions cannot be made without the concurrence of the Minister administering the Administrative Decisions Tribunal Act 1997.

Division 14 Personal liability for carrying out duties under road transport legislation

49 Indemnity from personal liability for honest and good faith carrying out of duties

(1)  An individual does not incur civil liability for an act or omission done honestly and in good faith in the course of his or her duties under the road transport legislation.

(2)  A liability that would, apart from subsection (1), attach to an individual because of an act or omission done honestly and in good faith in the course of his or her duties attaches instead:

(a)  if it is an act or omission of a police officer, to the Crown, or

(b)  if it is an act or omission of a person acting for the Authority, to the Authority.

(3)  An individual does not incur civil or criminal liability for carrying out a test or examination in accordance with the regulations made under the Road Transport (Driver Licensing) Act 1998 and expressing to the Authority in good faith an opinion formed as a result of having carried out the test or examination.

(4)  An individual does not incur civil or criminal liability for reporting to the Authority, in good faith, information that discloses or suggests that:

(a)  another person is or may be unfit to drive, or

(b)  it may be dangerous to allow another person to hold, to be issued or to have renewed, a driver licence or a variation of a driver licence.

Part 4 Further provisions concerning vehicles, roads and road related areas

Division 1 Police powers

50 Power of entry for tracing stolen motor vehicles or trailers or their parts (cf Traffic Act, s 7C)

(1)  A police officer authorised to do so by the Commissioner of Police may:

(a)  enter, at any time, any premises or place on which the business of carrying out repairs, resulting from accidents, to damaged motor vehicles or trailers is ordinarily carried on, and

(b)  inspect any motor vehicle or trailer (or part of a motor vehicle or trailer) that is found by the officer in or on those premises or that place for the purpose of ascertaining whether or not it is a stolen motor vehicle or trailer or part.

(2)  A person must not wilfully delay or obstruct a police officer in the exercise of his or her authority under subsection (1).

Maximum penalty (subsection (2)): 20 penalty units.

51 Use of tyre deflation devices in police pursuits (cf Traffic Act, s 24)

(1)  The Commissioner of Police may authorise the use by police officers of a device (a tyre deflation device) that causes the deflation of the tyres of a vehicle, for use by police to stop or assist in the stopping of a vehicle in connection with the pursuit of the vehicle by police.

(2)  Provision made by or under an Act that would operate to prohibit or restrict the placement or deployment on or near a road or road related area of a tyre deflation device does not apply to the placing or deploying of a tyre deflation device by a police officer acting in the exercise of his or her duties.

(3)  This section ceases to have effect at the beginning of the day that is 1 year after the day on which this section commences unless either House of Parliament passes a resolution that this section is not to cease to have effect in accordance with this subsection.

(4)  Either House of Parliament may pass a resolution that this section is not to cease to have effect in accordance with subsection (3), but any such resolution has no effect unless passed before the time at which this section would, but for the resolution, cease to have effect.

Editorial notes—

1 This section commenced on 1.12.1999.

2 The following resolution was passed by the Legislative Assembly on 29.11.2000: “That section 51 of the Road Transport (General) Act 1999 , providing for the use of tyre deflation devices in police pursuits, not cease to have effect in accordance with section 51 (3) of the Road Transport (General) Act 1999 .”

Division 2 Unauthorised use of vehicles

52 Motor vehicles or trailers not to be used without consent of owner (cf Traffic Act, s 8A)

(1)  A person must not use any motor vehicle or trailer without first obtaining the consent of the owner.

Maximum penalty: 20 penalty units.

(2)  This section does not apply to a police officer in the execution of his or her duty under the road transport legislation.

53 Procuring or hire of motor vehicle or trailer by fraud or misrepresentation (cf Traffic Act, s 8B)

(1)  A person must not procure the use or hire of any motor vehicle or trailer by fraud or misrepresentation.

Maximum penalty: 20 penalty units.

(2)  A person must not aid or abet a person to procure the use or hire of any motor vehicle or trailer by fraud or misrepresentation.

Maximum penalty: 20 penalty units.

Division 3 Written off and wrecked motor vehicles

54 Object of this Division (cf Traffic Act, s 10ZC)

The object of this Division is to provide for the collection of information concerning written off and wrecked motor vehicles, and for the taking of other measures in relation to such motor vehicles, to assist in preventing the registration of stolen motor vehicles and detecting motor vehicle theft and for other purposes connected with the administration and execution of this Act.

55 Definitions (cf Traffic Act, s 10ZD)

(1)  In this Division:

auto-dismantler has the same meaning as it has in the Motor Dealers Act 1974 and includes any other person, or class of persons, declared to be an auto-dismantler by the regulations under this Act.

dealer has the same meaning as it has in the Motor Dealers Act 1974 and includes any other person, or class of persons, declared to be a dealer by the regulations under this Act.

insurer means a person who carries on the business of insuring motor vehicles and includes any other person, or class of persons, declared to be an insurer by the regulations.

late model motor vehicle means a motor vehicle that is not more than 15 years old (age being determined from the date of manufacture) or, if the regulations prescribe a different age, not more than the age so prescribed.

motor vehicle includes a trailer.

register means the register of written off and wrecked motor vehicles kept by the Authority under this Division.

vehicle identifier, in relation to a motor vehicle, means:

(a)  in the case of a motor vehicle manufactured before 1 January 1989, the number quoted on the compliance plate that uniquely identifies the vehicle and sets it apart from similar vehicles and that corresponds to the identification number of the vehicle that is permanently recorded elsewhere on the vehicle, or

(b)  in any other case, the unique vehicle identification number (or “VIN”) allocated to the motor vehicle in accordance with the International Standards Organisation’s vehicle identification system required under an Australian Design Rule adopted by the regulations.

wrecked—see section 56.

written off—see section 57.

(2)  A reference in this Division to a person who carries on a business excludes a person who carries on such a business only as an employee.

56 Meaning of “wrecked” (cf Traffic Act, s 10ZE)

For the purposes of this Division, a motor vehicle is wrecked:

(a)  if it is demolished or dismantled, or

(b)  if it is in some other state or condition, or damaged in some manner, prescribed by the regulations.

57 Meaning of “written off” (cf Traffic Act, s 10ZF)

For the purposes of this Division, a motor vehicle is written off:

(a)  if a determination is made by an insurer in respect of the motor vehicle that the vehicle should be written off or should not be repaired (for example, because the vehicle has been stolen and has not been recovered or because the cost of repairs required to be made to the vehicle exceeds the value or insured value of the vehicle), or

(b)  in any other circumstances prescribed by the regulations.

58 Register of written off and wrecked motor vehicles (cf Traffic Act, s 10ZG)

(1)  The Authority is to keep a register of written off and wrecked motor vehicles.

(2)  The register may include information notified to the Authority under this Division and such other information as the Authority considers appropriate.

(3)  The register may be kept in the form of, or as part of, a computer database or in such other form as the Authority considers appropriate.

(4)  The Authority may authorise any person or class of persons to make entries in the register.

(5)  Access to the register is not available to members of the public (except as provided by this section).

(6)  The Authority may, on such conditions as the Authority considers appropriate:

(a)  allow a government department, a public authority, a local authority or the Police Service to have access to the register, and

(b)  allow a government department, a public authority, a local authority or the police force of another State, a Territory or the Commonwealth to have access to the register, and

(c)  allow an insurer, auto-dismantler or dealer to have access to the register, and

(d)  allow any other person or body, or class of persons or bodies, prescribed by the regulations to have access to the register.

(7)  The Authority may, on such conditions as the Authority considers appropriate, provide a person or body with information contained in the register.

59 Insurers to provide written off motor vehicle information to Authority (cf Traffic Act, s 10ZH)

(1)  An insurer must provide to the Authority the information prescribed by the regulations concerning each late model motor vehicle that is written off (anywhere in Australia) in the course of the business carried on by the insurer.

Maximum penalty: 20 penalty units.

(2)  The information required to be provided under this section must be provided:

(a)  subject to paragraph (b), within 7 days after the motor vehicle is written off in the course of that business and before the motor vehicle is sold or otherwise disposed of in the course of that business, or

(b)  within the time prescribed by the regulations.

60 Auto-dismantlers to provide wrecked motor vehicle information to Authority (cf Traffic Act, s 10ZI)

(1)  An auto-dismantler must provide to the Authority the information prescribed by the regulations concerning each late model motor vehicle that is demolished or dismantled (anywhere in Australia) in the course of the business carried on by the auto-dismantler.

Maximum penalty: 20 penalty units.

(2)  The information required to be provided under this section must be provided:

(a)  subject to paragraph (b), within 7 days after work is commenced in the course of that business for the purpose of demolishing or dismantling the motor vehicle and before the part of the motor vehicle to which the vehicle identifier is attached is sold or otherwise disposed of in the course of that business, or

(b)  within the time prescribed by the regulations.

61 Dealers to provide motor vehicle information to Authority (cf Traffic Act, s 10ZJ)

(1)  A dealer must provide to the Authority the information prescribed by the regulations concerning each late model motor vehicle that is in the care, custody or control of the dealer (anywhere in Australia) and that has been written off.

Maximum penalty: 20 penalty units.

(2)  The information required to be provided under this section must be provided:

(a)  subject to paragraph (b), within 7 days after the motor vehicle comes into the care, custody or control of the dealer and before the motor vehicle is sold or otherwise disposed of in the course of the business carried on by the dealer, or

(b)  within the time prescribed by the regulations.

(3)  A dealer does not commit an offence under this section in respect of a failure to provide information concerning a motor vehicle if the dealer satisfies the court that:

(a)  the dealer believed, on reasonable grounds, that the required information concerning the motor vehicle had already been provided to the Authority by an insurer under this Division, or

(b)  the dealer did not know, and did not have reasonable cause to suspect, that the motor vehicle had been written off.

(4)  The regulations may extend this section so that it also applies to late model motor vehicles that have been wrecked, or that have been wrecked in any specified manner, in the same way as it applies to written off motor vehicles (in which case the section applies accordingly).

62 Regulations may extend obligation to provide information under this Division to others (cf Traffic Act, s 10ZK)

The regulations may require any person who carries on a type of business specified in the regulations to provide to the Authority the information prescribed by the regulations concerning any late model motor vehicle that is written off or wrecked and is in the care, custody or control of the person (anywhere in Australia).

63 False or misleading information (cf Traffic Act, s 10ZL)

A person must not, in purported compliance with this Division or the regulations under this Division, provide information to the Authority that the person knows to be false or misleading in a material particular.

Maximum penalty: 20 penalty units.

64 Unauthorised access to or interference with register (cf Traffic Act, s 10ZM)

A person must not, except as authorised by the Authority or other lawful authority:

(a)  obtain access to the register or information contained in the register, or

(b)  make, alter or delete an entry in the register, or

(c)  interfere with the register in any other way.

Maximum penalty: 20 penalty units.

65 Unauthorised disclosure of information (cf Traffic Act, s 10ZN)

A person must not disclose any information obtained in connection with the administration or execution of this Division, except:

(a)  with the consent of the person from whom the information was obtained, or

(b)  in connection with the administration or execution of this Act or the regulations, or

(c)  for the purposes of any legal proceedings arising out of this Act or the regulations or of any report of such proceedings, or

(d)  with other lawful excuse.

Maximum penalty: 20 penalty units.

66 Removal of vehicle identifiers (cf Traffic Act, s 10ZO)

(1)  An insurer, auto-dismantler, dealer or other person required to provide information to the Authority under this Division may be required to take any reasonable steps, or to ensure that such steps are taken, to remove, deface, obliterate or destroy the vehicle identifier on any part of a motor vehicle that has been written off or wrecked.

(2)  The requirement may be made:

(a)  by the regulations, or

(b)  by notice in writing served on the person by the Authority.

(3)  A notice under this section may be served personally or by post.

(4)  A person must comply with a requirement made under this section.

Maximum penalty (subsection (4)): 20 penalty units.

67 Authority may refuse to register motor vehicle that has written off or wrecked vehicle identifier (cf Traffic Act, s 10ZP)

(1)  The Authority may refuse to register any motor vehicle under the Road Transport (Vehicle Registration) Act 1997 (or regulations made under that Act) if its vehicle identifier is the same as the vehicle identifier of a motor vehicle that has been noted on the register as being written off or wrecked.

(2)  Subsection (1) does not apply:

(a)  in the case of a motor vehicle that was written off because it was stolen—if the Authority is satisfied that the motor vehicle has been recovered, or

(b)  in the case of a motor vehicle that was written off because it was damaged—if the Authority is satisfied that the motor vehicle has been restored or repaired, or

(c)  in any other circumstances prescribed by the regulations.

(3)  This section does not limit the power of the Authority to refuse to register a motor vehicle under any other provision of the Road Transport (Vehicle Registration) Act 1997 or regulations made under that Act.

68 Variations to Division (cf Traffic Act, s 10ZQ)

The regulations may provide that this Division or any specified provision of this Division:

(a)  does not apply to and in respect of:

(i)  any specified motor vehicle or class of motor vehicles, or

(ii)  any specified person or class of persons, or

(b)  applies only in respect of:

(i)  any specified motor vehicle or class of motor vehicles, or

(ii)  any specified person or class of persons.

69 Exemptions (cf Traffic Act, s 10ZR)

(1)  The Authority may, by instrument in writing, exempt any person from the operation of all or any of the provisions of this Division.

(2)  An exemption:

(a)  may be absolute or subject to conditions, and

(b)  if subject to conditions, has effect only while the conditions are observed.

Part 5 Miscellaneous

70 Act to bind Crown

This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.

71 Regulations

(1)  The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2)  Without limiting subsection (1), the regulations may make provision for or with respect to the following:

(a)  giving effect to the object of Division 3 of Part 4 (including prescribing the form and manner in which the information required to be provided under that Division is to be provided to the Authority),

(b)  the fixing of fees for services provided by the Authority under this Act or the regulations,

(c)  the collection and recovery of fees fixed under this Act or the regulations,

(d)  the refund, or partial refund, of fees fixed under this Act or the regulations,

(e)  the waiver or postponement of fees fixed under this Act or the regulations.

(3)  The regulations may impose a fee in respect of services provided by the Authority under this Act or the regulations despite the fact that the fee may also comprise a tax.

(4)  The regulations may create offences punishable by a penalty not exceeding 20 penalty units.

72 Regulations may exclude vehicles, animals and persons from this Act or the regulations

(1)  The regulations may:

(a)  exempt a vehicle, person or animal (or a class of vehicles, persons or animals of a kind) identified in the regulations from the operation of this Act or the regulations (or specified provisions of this Act or the regulations), or

(b)  authorise the Authority to exempt a vehicle, person or animal (or a class of vehicles, persons or animals of a kind) identified in the regulations from the operation of this Act or the regulations (or specified provisions of this Act or the regulations).

(2)  An exemption granted by or under a regulation referred to in subsection (1) may be given unconditionally or on specified conditions.

(3)  The regulations may provide for the Authority:

(a)  to suspend the operation of any regulation referred to in subsection (1) in such manner and in such circumstances as may be specified by the regulations, or

(b)  to suspend the operation of an exemption given by it to any vehicle, person or animal in such manner and in such circumstances as may be specified by the regulations,

or both.

73 Unpaid charges and fees (cf Traffic Act, s 19)

Except as provided by section 39 (7), any amount of unpaid charges or fees payable under this Act is a debt due to the Authority and may be recovered in a court of competent jurisdiction.

74 Savings, transitional and other provisions

Schedule 2 has effect.

75 Review of Act

(1)  The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.

(2)  The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act.

(3)  A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.

Schedule 1 Impounded and forfeited vehicles

(Sections 39 and 40)

1 Definitions

In this Schedule:

Commissioner means the Commissioner of Police.

registered interest, in relation to a motor vehicle, means an interest in the vehicle that is registered under the Registration of Interests in Goods Act 1986.

2 Registered operator and interested persons to be notified

(1)  The Commissioner is to give notice of:

(a)  the impounding of a vehicle under section 39, or

(b)  the impounding, or continued or further impounding, or forfeiture, of a vehicle under section 40,

to the registered operator of the vehicle and to the holder of any registered interest in the vehicle.

(2)  The notice may be given personally or by post, and must be given within 14 days after the occurrence the subject of the notice.

(3)  The notice is to state the offence for which the vehicle stands impounded or forfeit.

3 Retention of vehicle impounded under section 39

(1)  The Commissioner is to retain a vehicle impounded under section 39 until such time as the offence for which it was impounded is dealt with by a court or by the offender under Division 1 of Part 3 of this Act, unless it is sooner released under clause 5 or 6 or in accordance with the regulations.

(2)  A vehicle that is retained in accordance with this clause until an offence is dealt with is thereafter to be dealt with as required by or under section 40.

(3)  This clause does not apply in the case of a vehicle impounded in the circumstances referred to in section 39 (1) (b), except as prescribed by the regulations.

4 Retention of vehicle impounded or forfeited under section 40

(1)  A vehicle impounded under section 40 is to be retained by the Commissioner for the time required by or under that section, unless it is sooner released under clause 5 or 6.

(2)  A vehicle forfeited under section 40 is to be retained by the Commissioner until further directed by the Minister, unless it is sooner released under clause 5 or 6.

5 Release of vehicle on application to Commissioner

(1)  Application may be made by any person to the Commissioner for the release of an impounded vehicle into the person’s custody.

(2)  The Commissioner may release the vehicle to the applicant if:

(a)  the period for which the vehicle would be liable to be impounded under section 40 as a result of a conviction for the offence that gave rise to its impounding has expired and the prescribed fees for storage of the vehicle by the Commissioner have (except to the extent that the Commissioner has waived payment of those fees) been paid, or

(b)  although that period has not expired, the Commissioner is satisfied, on such evidence as the Commissioner may reasonably require, that:

(i)  the offence concerned was not committed with the consent of the applicant, and

(ii)  the applicant did not know, and could not reasonably be expected to have known, that the vehicle would be used for the commission of the offence,

and if the Commissioner is satisfied, on such evidence as the Commissioner may reasonably require, that the applicant is lawfully entitled to possession of the vehicle.

(3)  It is the duty of the Commissioner to endeavour to cause any impounded vehicle to be available for collection by a person entitled to its possession as soon as the person is entitled to it.

(4)  An applicant to whom a vehicle is released under this clause must in writing acknowledge receipt of the vehicle from the custody of the Commissioner.

(5)  The Commissioner may remit the whole or any part of the prescribed fees for storage of a vehicle.

6 Release of vehicle on application to Administrative Decisions Tribunal

(1)  A person may apply to the Administrative Decisions Tribunal for an order for the release of an impounded vehicle into the person’s custody.

(2)  An application under this clause stays any order or direction for forfeiture or disposal of the vehicle.

(3)  An application under this clause may be made whether or not an application has been made to the Commissioner under clause 5.

(4)  The Tribunal is not limited by the provisions of clause 5, and is entitled in any case to have regard not only to the public interest but to any alleged hardship or other circumstances of the case.

(5)  Subclause (4) applies even though the Commissioner may have refused an application under clause 5, and the Tribunal may order or refuse to order the release of an impounded vehicle as justice requires.

(6)  An applicant to whom a vehicle is released by order of the Tribunal must in writing acknowledge receipt of the vehicle from the custody of the Commissioner.

(7)  The Tribunal may determine whether or not the prescribed fees for storage of the vehicle by the Commissioner, or some of those fees, are payable by the applicant to the Commissioner.

(8)  A decision of the Tribunal made in proceedings determining an application under this clause is an appealable decision for the purposes of Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997.

(9)  The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this clause.

7 Safe keeping of vehicles

The Commissioner has (in the Commissioner’s official capacity) a duty to take all reasonable steps to secure an impounded vehicle against theft or damage while impounded.

8 Failure to prosecute

(1)  No action lies against the Crown, the Minister, the Commissioner or any police officer in respect of the seizure or impounding, under section 39, of a vehicle for an alleged offence for which no proceedings or process are taken or issued.

(2)  This clause does not protect a police officer from liability in respect of the seizure, otherwise than in good faith, of a motor vehicle.

9 Disposal of vehicles

(1)  The Commissioner may cause an impounded or forfeited vehicle to be offered for sale in the circumstances prescribed by the regulations. The sale is to be by public auction or public tender.

(2)  The vehicle may be disposed of otherwise than by sale if the Commissioner believes on reasonable grounds that the vehicle has no monetary value or that the proceeds of the sale would be unlikely to exceed the costs of sale.

(3)  If the vehicle offered for sale is not sold, the Commissioner may dispose of the vehicle otherwise than by sale.

(4)  The regulations may make provision for or with respect to the disposal of the proceeds of any such sale, including provisions for or with respect to entitling persons to seek to be paid any such proceeds.

sch 1: Am 2003 No 82, Sch 1.32 [1].

Schedule 1A Interlock participation and disqualification compliance periods

(Sections 25C (a) and 25D (a))

Column 1		Column 2	Column 3
Category of offender		Minimum interlock participation period	Disqualification compliance period
1.	A person convicted of an offence under section 9 (3) (a) or (b), (4) (a) or (b), 12 (1) (a) or (b) or 15 (4) of the Road Transport (Safety and Traffic Management) Act 1999 who, at the time of the conviction or during the period of 5 years before the conviction, is not or has not been convicted of any other alcohol-related major offence (whether of the same or a different kind).	24 months	6 months
2.	A person convicted of an offence under section 9 (4) (a) or (b), 12 (1) (a) or (b) or 15 (4) of the Road Transport (Safety and Traffic Management) Act 1999 who, at the time of the conviction or during the period of 5 years before the conviction, is or has been convicted of any other alcohol-related major offence (whether of the same or a different kind).	48 months	12 months
3.	A person convicted of an offence under section 9 (3) (a) or (b) of the Road Transport (Safety and Traffic Management) Act 1999 who, at the time of the conviction or during the period of 5 years before the conviction, is or has been convicted of any other alcohol-related major offence (whether of the same or a different kind).	24 months	6 months
4.	A person convicted of an offence under section 9 (1A), (1) (a) or (b) or (2) (a) or (b) of the Road Transport (Safety and Traffic Management) Act 1999 who, at the time of the conviction or during the period of 5 years before the conviction, is or has been convicted of any other alcohol-related major offence (whether of the same or a different kind).	12 months	3 months

sch 1A: Ins 2002 No 72, Sch 1 [6]. Am 2004 No 17, Sch 2.3 [4].

Schedule 2 Savings, transitional and other provisions

(Section 74)

Part 1 General

1 Regulations

(1)  The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:

this Act

Road Transport (Safety and Traffic Management) Act 1999

Road Transport Legislation Amendment Act 1999

Road Transport (General) Amendment (Operator Onus Offences) Act 2002

Road Transport (Safety and Traffic Management) Amendment (Alcohol) Act 2004, but only to the extent that it amends this Act

Road Transport Legislation Amendment (Public Transport Lanes) Act 2004, but only in relation to the amendments made to this Act

Road Transport (General) Amendment (Licence Suspension) Act 2004

(2)  Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.

(3)  To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:

(a)  to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or

(b)  to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.

(4)  Regulations made as referred to in subclause (1) may have effect despite the terms of any savings or transitional provisions contained in this Schedule, if the regulations so provide.

Part 2 Provisions consequent on enactment of this Act, Road Transport (Safety and Traffic Management) Act 1999 and Road Transport Legislation Amendment Act 1999

Division 1 Interpretation

2 Definitions

(1)  In this Part:

amended provision means a provision of an Act or regulation amended by Schedule 2 or 3 to the amending Act.

amending Act means the Road Transport Legislation Amendment Act 1999.

repealed Act means the Traffic Act 1909 as in force immediately before its repeal by the amending Act.

STM Act means the Road Transport (Safety and Traffic Management) Act 1999.

(2)  For the purposes of this Part:

(a)  a provision of this Act or the STM Act or any other road transport legislation corresponds to a provision of the repealed Act if the provision is in the same (or in substantially the same) terms as the provision in the repealed Act, and

(b)  a function under this Act or the STM Act or any other road transport legislation corresponds to a function under the repealed Act if the function is the same (or substantially the same) as the function under the repealed Act.

Division 2 Continuing operation of repealed Act and amended provisions

3 Repealed Act and regulations made under it continue to apply in certain circumstances

(1)  The repealed Act and any regulations, declarations or orders made under that Act continue to apply with respect to the following matters as if this Act, the STM Act and the amending Act had not been enacted:

(a)  an offence or alleged offence under the repealed Act or the regulations made under that Act,

(b)  any proceedings for any such offence,

(c)  any penalty notice issued under section 18B of the repealed Act that is in force immediately before the repeal of that section,

(d)  any suspension of a licence by the Commissioner under section 10B of the repealed Act in force under that section immediately before the repeal of the repealed Act,

(e)  any notice given to a person by a police officer under section 10C of the repealed Act (and any related period of suspension of a licence) in force under that section immediately before the repeal of that Act,

(f)  any notice given to a person by a police officer under section 10D of the repealed Act (and any related period of suspension of an authority to drive in New South Wales) in force under that section immediately before the repeal of that Act,

(g)  any appeal that is pending in a Local Court (or any entitlement to appeal to a Local Court that has not been exercised) immediately before the repeal of the repealed Act,

(h)  any breath, blood or urine sample taken under that Act before the repeal of the repealed Act,

(i)  any vehicle taken charge of or removed by a police officer under section 5A or 25 of the repealed Act that has not been returned before that repeal.

(2)  This clause is subject to any contrary provision in this Schedule.

4 Confiscation of keys under section 26A of repealed Act

If keys are confiscated under section 26A of the repealed Act before its repeal, the provisions of the repealed Act (and any relevant regulations made under that Act) that would have applied in respect of the keys but for their repeal continue to apply in respect of the keys as if the Act and regulations had not been repealed.

5 Removal of unattended vehicles under section 26 of repealed Act

If an unattended motor vehicle or trailer is removed under section 26 of the repealed Act before its repeal, the provisions of the repealed Act (and any relevant regulations made under that Act) that would have applied in respect of that vehicle but for their repeal continue to apply in respect of that vehicle as if the Act and regulations had not been repealed.

6 Seized, impounded and forfeited vehicles under repealed Act

(1)  If a motor vehicle is seized, impounded or forfeited under section 4BB or 4BC of the repealed Act before its repeal, the provisions of the repealed Act (and any relevant regulations made under that Act) that would have applied in respect of that vehicle but for their repeal continue to apply in respect of that vehicle as if the Act and regulations had not been repealed.

(2)  However, section 39 (1) (a) of this Act is taken to extend to a motor vehicle that was not seized before the repeal of section 4BB of the repealed Act as if the references to sections 40 and 41 of the STM Act include references to sections 4B and 4BA respectively of the repealed Act.

7 Offences under amended provisions

(1)  An amended provision as in force immediately before the commencement of a relevant item continues to apply to a relevant offence committed, or alleged to have been committed, before the commencement of that item.

(2)  In this clause:

relevant item means an item of Schedule 2 or 3 to the amending Act that amends a provision of an Act or regulation that contains an offence.

relevant offence means an offence under an Act or regulation that is amended by a relevant item.

Note—

Section 30 of the Interpretation Act 1987 is a general provision preserving rights accruing and liabilities incurred before an amendment or repeal of a provision of an Act or statutory rule.

Division 3 Delegations, approvals and authorisations under repealed Act

8 Certain existing delegations taken to be delegations under the Transport Administration Act 1988

Any person who, immediately before the repeal of the repealed Act, was a delegate of the Authority in respect of the exercise of any function is taken to be a delegate of the Authority under section 50 of the Transport Administration Act 1988 in respect of any corresponding function of the Authority under the STM Act or this Act (or the regulations made under the STM Act or this Act).

9 Approved existing control devices taken to be approved prescribed traffic control devices under the STM Act

(1)  Any existing traffic control device that is also a prescribed traffic control device within the meaning of Part 4 of the STM Act is taken to be installed or displayed on, near or above the road or road related area with appropriate authority for the purposes of Part 4 of the STM Act.

(2)  In this clause, existing traffic control device means a traffic control sign within the meaning of section 4D of the repealed Act:

(a)  that was erected or displayed on or near a road or road related area with the authority of the Authority within the meaning of that section before its repeal or otherwise lawfully erected or displayed, and

(b)  continued to be so erected or displayed immediately before the repeal of that section.

10 Approved speed measuring devices, approved speed measuring device and approved camera detection devices under repealed Act

(1)  A device that, immediately before the repeal of the repealed Act, was an approved speed measuring device for the purposes of that Act is taken to be an approved speed measuring device for the purposes of the STM Act.

(2)  A device that, immediately before the repeal of the repealed Act, was an approved camera recording device for the purposes of that Act is taken to be an approved camera recording device for the purposes of the STM Act.

(3)  A device that, immediately before the repeal of the repealed Act, was an approved camera detection device for the purposes of that Act is taken to be an approved camera detection device for the purposes of the STM Act.

11 Certain authorisations by Commissioner of Police under repealed Act preserved

(1)  A police officer who was duly authorised by the Commissioner of Police under the repealed Act to install or inspect (or both) approved camera recording devices and whose authorisation was still in force immediately before the repeal of that Act is taken to have been duly authorised by the Commissioner of Police under the STM Act to install or inspect (or both) approved camera recording devices, as the case may be.

(2)  A police officer who was duly authorised by the Commissioner of Police under the repealed Act to install or inspect (or both) approved camera detection devices and whose authorisation was still in force immediately before the repeal of that Act is taken to have been duly authorised by the Commissioner of Police under the STM Act to install or inspect (or both) approved camera detection devices, as the case may be.

(3)  A police officer who was duly authorised by the Commissioner of Police under the repealed Act to carry out a breath analysis and whose authorisation was still in force immediately before the repeal of that Act is taken to have been duly authorised by the Commissioner of Police under the STM Act to carry out a breath analysis.

12 Approval by Commissioner of Police under section 4B of repealed Act to conduct races, speed record attempts or speed or other trials

An approval granted by the Commissioner of Police under section 4B of the repealed Act for an activity referred to in section 4B (1) of that Act that is in force immediately before the repeal of that Act is taken to be an approval for that activity granted by the Commissioner under section 40 of the STM Act and subject to the same conditions (if any) originally imposed.

13 Authorised officers under sections 25 and 26 of repealed Act are authorised officers under section 75 and 76 of STM Act

(1)  A person who is an authorised officer within the meaning of paragraph (a) of the definition of authorised officer in section 25 (3) of the repealed Act immediately before its repeal is taken to be an authorised officer within the meaning of paragraph (a) of the definition of authorised officer in section 75 (4) of the STM Act.

(2)  A person who is an authorised officer within the meaning of paragraph (a) of the definition of authorised officer in section 26 (8) of the repealed Act immediately before its repeal is taken to be an authorised officer within the meaning of paragraph (a) of the definition of authorised officer in section 76 (9) of the STM Act.

Division 4 Declarations, orders, exemptions and notices under repealed Act and other legislation

14 Declarations in respect of areas made under repealed Act and road transport legislation

(1)  In this clause:

existing area declaration means:

(a)  a declaration in force under section 2A of the repealed Act immediately before the repeal of that Act, and

(b)  a declaration in force under section 29 of the Road Transport (Driver Licensing) Act 1998 immediately before the commencement of Schedule 2.36 [10] to the amending Act, and

(c)  a declaration in force under section 25 of the Road Transport (Vehicle Registration) Act 1997 immediately before the commencement of Schedule 2.38 [10] to the amending Act.

relevant commencement means:

(a)  in relation to a declaration in force under section 2A of the repealed Act—the commencement of Schedule 1 to the amending Act in its application to the repealed Act, and

(b)  in relation to a declaration in force under section 29 of the Road Transport (Driver Licensing) Act 1998—the commencement of Schedule 2.36 [10] to the amending Act, and

(c)  in relation to a declaration in force under section 25 of the Road Transport (Vehicle Registration) Act 1997—the commencement of Schedule 2.38 [10] to the amending Act.

(2)  An existing area declaration is taken:

(a)  to be a declaration in force under section 9 of this Act, and

(b)  to relate to the same area of the State or road or road related area (as the case may be) to which it applied immediately before the relevant commencement, and

(c)  to relate to:

(i)  if the provisions of the Acts or regulations to which it applies are still in force after the relevant commencement—the same provisions, or

(ii)  if the provisions of the Acts or regulations to which it applies are repealed on or before the relevant commencement—provisions in the road transport legislation that correspond to the repealed provisions.

(3)  Nothing in this clause prevents the revocation of any declaration.

15 Declarations in respect of persons, vehicles or animals made under certain road transport legislation

(1)  In this clause:

existing non-application declaration means:

(a)  a declaration in force under section 30 of the Road Transport (Driver Licensing) Act 1998 immediately before the commencement of Schedule 2.36 [11] to the amending Act, and

(b)  a declaration in force under section 25A of the Road Transport (Vehicle Registration) Act 1997 immediately before the commencement of Schedule 2.38 [11] to the amending Act.

relevant commencement means:

(a)  in relation to a declaration in force under section 30 of the Road Transport (Driver Licensing) Act 1998—the commencement of Schedule 2.36 [11] to the amending Act, and

(b)  in relation to a declaration in force under section 25A of the Road Transport (Vehicle Registration) Act 1997—the commencement of Schedule 2.38 [11] to the amending Act.

(2)  An existing non-application declaration is taken:

(a)  to be a declaration in force under section 10 of this Act, and

(b)  to relate to the same persons, vehicles or animals in the locations and circumstances to which it applied immediately before the relevant commencement, and

(c)  to relate to:

(i)  if the provisions of the Acts or regulations to which it applies are still in force after the relevant commencement—the same provisions, or

(ii)  if the provisions of the Acts or regulations to which it applies are repealed on or before the relevant commencement—provisions in the road transport legislation that correspond to the repealed provisions.

(3)  Nothing in this clause prevents the revocation of any declaration.

16 Orders under certain road transport legislation suspending or varying regulations

(1)  In this clause:

existing suspension or variation order means:

(a)  an order in force under section 28 of the Road Transport (Driver Licensing) Act 1998 immediately before the commencement of Schedule 2.36 [9] to the amending Act, and

(b)  an order in force under section 24 of the Road Transport (Vehicle Registration) Act 1997 immediately before the commencement of Schedule 2.38 [9] to the amending Act.

relevant commencement means:

(a)  in relation to an order in force under section 28 of the Road Transport (Driver Licensing) Act 1998—the commencement of Schedule 2.36 [9] to the amending Act, and

(b)  in relation to an order in force under section 24 of the Road Transport (Vehicle Registration) Act 1997—the commencement of Schedule 2.38 [9] to the amending Act.

(2)  An existing suspension or variation order is taken:

(a)  to be a order in force under section 12 of this Act, and

(b)  to apply to the same area as it applied immediately before the relevant commencement, and

(c)  if the order suspended regulations—to suspend the same regulations for the same period as specified by the order in force immediately before the relevant commencement, and

(d)  if the order varied regulations—to vary the same regulations in the manner specified by the Minister in the order in force immediately before the relevant commencement.

(3)  Nothing in this clause prevents the revocation or amendment of any order.

17 Exemption under section 10O of repealed Act

Any exemption given by the Authority under section 10O of the repealed Act in respect of all or any of the provisions of Part 3A of that Act that is in force immediately before the repeal of that Act is taken to be an exemption under section 68 of the STM Act in respect of the corresponding provisions of Division 2 of Part 5 of that Act and subject to the same conditions (if any).

18 Notices under section 4AE of repealed Act

A notice given under section 4AE of the repealed Act requiring a person to remove or surrender a prohibited speed measuring evasion article that is in force immediately before the repeal of that section that provides for compliance within a period that expires after that repeal is taken:

(a)  to be a notice given under the corresponding provision of section 49 of the STM Act, and

(b)  to require the person to remove or surrender the article at the expiry of the same period and in the same manner as originally specified in the notice.

Division 5 Licence disqualification and suspension under repealed Act

19 Disqualification under repealed Act

(1)  Section 26 of this Act applies to any disqualification from holding a driver licence to which section 10AA of the repealed Act applied immediately before its repeal.

(2)  However, section 26 (2) does not apply to any person who was disqualified by a court before the repeal of section 10AA.

20 Declarations of habitual traffic offender under section 10EA of repealed Act

If a person is declared to be an habitual traffic offender by section 10EA of the repealed Act and that declaration is in force immediately before the repeal of that section by the amending Act:

(a)  the declaration is taken to be a declaration in force as a declaration under Division 4 of Part 3 of this Act, and

(b)  the period of disqualification imposed by the declaration is taken to be the period that is unexpired immediately before the repeal of section 10EA.

21 Suspensions under section 10C and 10D of repealed Act

(1)  If, immediately before the repeal of section 10C of the repealed Act by the amending Act, a police officer:

(a)  has a right to suspend a person’s driver licence under that section within 48 hours of the person being charged with an offence referred in section 10C (1) of that Act as in force immediately before its repeal, and

(b)  the period referred to in paragraph (a) has not expired immediately before that repeal,

any police officer is taken to have that right under section 34 of this Act for the balance of the 48 hour period that has not expired.

(2)  If, immediately before the repeal of section 10D of the repealed Act by the amending Act, a police officer:

(a)  has a right to suspend a person’s authority to drive under that section within 48 hours of the person being charged with an offence referred in section 10C (1) of that Act as in force immediately before its repeal, and

(b)  the period referred to in paragraph (a) has not expired immediately before that repeal,

any police officer is taken to have that right under section 35 of this Act for the balance of the 48 hour period that has not expired.

Division 6 Appeals and reviews

22 Decisions under road transport legislation that are reviewable by Administrative Decisions Tribunal

(1)  Until the regulations provide otherwise:

(a)  any person who was entitled under a right of review provision to apply to the Administrative Decisions Tribunal for a review of a decision is taken to be entitled to apply to the Tribunal for a review of the decision under section 48 of this Act, and

(b)  any application to the Tribunal made under a right of review provision that is pending or has been heard (but that has not been finally determined) immediately before the repeal of the right of review provision is taken to be an application made under section 48 of this Act.

(2)  For the purposes of subclause (1), the Tribunal has the same functions by operation of section 48 of this Act as it would have had under the right of review provision concerned.

(3)  In this clause:

right of review provision means:

(a)  section 21 of the Road Transport (Driver Licensing) Act 1998 as in force immediately before its repeal by the amending Act, and

(b)  section 17 of the Road Transport (Vehicle Registration) Act 1997 as in force immediately before its repeal by the amending Act.

23 Existing appeal rights under certain road transport legislation

(1)  The provisions of the Road Transport (Driver Licensing) Act 1998 (and the regulations made under that Act) as in force immediately before the commencement of Schedule 2.36 [12] to the amending Act continue to apply to:

(a)  any appeal under the Road Transport (Driver Licensing) Act 1998 (or under a regulation under that Act) that is pending in a Local Court immediately before that commencement, and

(b)  any right to appeal to a Local Court that is available to a person under that Act or regulation immediately before that commencement.

(2)  The provisions of the Road Transport (Vehicle Registration) Act 1997 (and the regulations made under that Act) as in force immediately before the commencement of Schedule 2.38 [11] to the amending Act continue to apply to:

(a)  any appeal under the Road Transport (Vehicle Registration) Act 1997 (or under a regulation under that Act) that is pending in a Local Court immediately before that commencement, and

(b)  any right to appeal to a Local Court that is available to a person under that Act or regulation immediately before that commencement.

24 Interim appeals rights to the Local Court pending exercise of jurisdiction by Administrative Decisions Tribunal

(1)  The regulations may make provision for or with respect to:

(a)  appeals against any decision (or class of decisions) under the road transport legislation instead of a review of any such decision or class of decisions by the Administrative Decisions Tribunal, and

(b)  applications for orders of the kind referred to in clause 6 of Schedule 1 for the release of an impounded vehicle.

(2)  In particular, and without limiting subclause (1), the regulations may:

(a)  provide that section 48 or clause 6 of Schedule 1 does not apply to a decision or class of decisions, and

(b)  provide for the manner of notification of specified decisions by the Authority or any other person to persons affected by the decisions, and

(c)  confer jurisdiction on a Local Court in respect of the following:

(i)  to hear and determine appeals against specified decisions, or classes of decisions, under the road transport legislation,

(ii)  to hear and determine applications for orders for the release of an impounded vehicle, and

(d)  set out the actions that may be taken by a Local Court or must be taken by the Authority or any other person after the determination of an appeal or an application.

(3)  A regulation referred to in subclause (1) may provide that a decision of a Local Court is final and not subject to any appeal or review by another court or body.

(4)  Nothing in subclause (2) prevents:

(a)  the hearing or determination of an appeal to a Local Court in respect of a decision that is made reviewable by the Administrative Decisions Tribunal under section 48 of this Act after the lodgment of any such appeal, or

(b)  the hearing or determination of an application to a Local Court in respect of the release of an impounded vehicle that is made amenable to an application to the Administrative Decisions Tribunal under clause 6 of Schedule 1 to this Act after the lodgment of any such application.

(5)  Nothing in this clause limits clause 1.

Division 7 Written off and wrecked vehicles

25 Written off and wrecked vehicles under repealed Act

(1)  A register of written off and wrecked motor vehicles maintained by the Authority under section 10ZG of the repealed Act immediately before the repeal of that section is taken to be the register of written off and wrecked vehicles under section 58 of this Act.

(2)  If, immediately before the repeal of Part 3E of the repealed Act, a person was under a duty under a provision of that Part to provide information to the Authority within a period that expires after the repeal of that Part (the original duty):

(a)  the person is taken to be under a duty to provide the information under the provision of Division 3 of Part 4 of this Act that corresponds to the provision of Part 3E of the repealed Act (including any relevant regulations made under that Part) that imposed the original duty (the new duty), and

(b)  the new duty is taken to relate to the same information to which the original duty extended, and

(c)  the period within which the new duty must be carried out expires on the same date on which the original duty would, but for the repeal of Part 3E of the repealed Act, have expired.

(3)  If a notice given by the Authority to a person under section 10ZO of the repealed Act is in force immediately before the repeal of that section and that notice imposes a requirement that is to be complied with within a period that expires after the repeal of that section (the original notice):

(a)  the original notice is taken to be a notice given by the Authority to that person under section 66 of this Act (the new notice), and

(b)  the new notice is taken to impose the same requirement on the person as the original notice, and

(c)  the period within which the requirement imposed by the new notice must be complied with expires on the same date as was specified in the original notice.

(4)  Any exemption granted by the Authority under section 10ZR of the repealed Act that is in force immediately before the repeal of that section (the original exemption) is taken:

(a)  to be an exemption granted by the Authority under section 69 of this Act, and

(b)  to exempt the person from the provisions of Division 3 of Part 4 of this Act that correspond to the provisions of Part 3E of the repealed Act from which the person was exempted by the original exemption, and

(c)  is subject to the same conditions (if any) as applied to the original exemption.

Note—

Clause 3 of this Schedule ensures that the provisions of Part 3E of the repealed Act (and any associated regulation made under that Part), along with other provisions of the repealed Act, will continue to apply to a person who has committed an offence under that Part before its repeal.

Division 8 Heavy vehicle monitoring

26 Application of STM Act to matters formerly regulated by Part 3A of repealed Act

If a vehicle movement record:

(a)  was required under Part 3A of the repealed Act as in force immediately before the repeal of that Part by the amending Act to be kept for a period of at least 12 months, and

(b)  the period of 12 months had not expired before that repeal,

Division 2 of Part 5 of the STM Act is taken to apply to that record for the unexpired period as if it were a vehicle movement record within the meaning of that Division.

Division 9 Miscellaneous

27 Certificates under section 12 of the repealed Act and other repealed provisions of road transport legislation

Section 46 is taken to extend to any matter that could (but for their repeal by the amending Act) have been the subject of a certificate under any of the following provisions:

(a)  section 12 of the repealed Act,

(b)  section 26 of the Road Transport (Driver Licensing) Act 1998,

(c)  section 22 of the Road Transport (Vehicle Registration) Act 1997.

28 Indemnity for personal liability under repealed provisions of road transport legislation to continue in force for past acts and omissions

Section 31 of the Road Transport (Driver Licensing) Act 1998 and section 28 of the Road Transport (Vehicle Registration) Act 1997 continue to apply with respect to acts or omissions occurring before their repeal by the amending Act as if this Act and the amending Act had not been enacted.

29 Fees and charges payable under repealed Act

(1)  Any fee or charge payable to the Authority under the repealed Act immediately before its repeal is taken to be payable to the Authority under this Act.

(2)  Any fee or charge payable to any other person under the repealed Act immediately before its repeal is taken to be payable to that person under this Act.

30 References to provisions of repealed Act and regulations to be read as corresponding provision

A reference in any other Act (other than the STM Act or the amending Act) or other instrument to a provision of the repealed Act or a regulation made under that Act is to be read as a reference to the corresponding provision of the road transport legislation, unless the regulations or the context otherwise requires.

31 Effect of this Part

Nothing in this Part prevents the amendment or revocation of any delegation, authorisation, approval, declaration or order.

Part 3 Provisions consequent on enactment of Road Transport (General) Amendment (Operator Onus Offences) Act 2002

32 Offences under amended provisions

(1)  A provision of this Act as in force immediately before the commencement of the Road Transport (General) Amendment (Operator Onus Offences) Act 2002 continues to apply in relation to an operator onus offence committed, or alleged to have been committed, before that commencement as if that Act had not been enacted.

(2)  In this clause:

operator onus offence means any of the following offences (as defined in section 43 (11)):

(a)  a camera-detected traffic light offence,

(b)  a camera-recorded speeding offence,

(c)  a parking offence.

sch 2: Am 2002 No 11, Sch 1 [7] [8]; 2003 No 82, Sch 1.32 [2] [3]; 2004 No 17, Sch 2.3 [5]; 2004 No 22, Sch 2 [8]; 2004 No 59, Sch 1 [12].