Page 2037 - Week 06 - Thursday, 7 May 2009
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .
national compliance and enforcement reforms for the road transport law in such areas as driving hours and fatigue management, speeding heavy vehicles and vehicle standards.
The national model compliance and enforcement provisions were not drafted as template legislation as it was recognised that the national regulatory framework would need to be accommodated within state and territory legislative and legal policy frameworks. With this in mind, some aspects of the national model scheme are classified as desirable rather than essential for nationally consistent outcomes. Whilst the desirable elements were included in the national model to provide a best practice legislative compliance and enforcement scheme, the ACT was free to adopt only those elements that can be accommodated within our criminal law and human rights policy framework. The ACT Road Transport (Mass, Dimensions and Loading) Bill has been drafted to achieve such an outcome.
The key changes to the national approach that were necessary to achieve compatibility with ACT criminal law and human rights policy are:
(a) Instead of a tiered penalty structure which is considered to interfere with the discretion of the courts to deal with each case according to all the circumstances, particularly where there may be several fault element offences, a single maximum penalty is to apply for heavy vehicle road law offences.
(b) The bulk of contraventions under the model bill apply absolute liability as the standard for offences. The ACT bill departs from the model bill by applying strict liability for minor substantial breaches of mass, dimensions or loading requirements. In the case of severe breaches, a greater penalty is considered necessary than the 50 penalty unit maximum usually applied to strict liability offences. For severe breaches, the penalty is related to the degree of criminal intent or responsibility involved in the offence. For example, in a case involving a severe mass breach, the maximum penalty is 100 penalty units where negligence is a factor in the offence, 150 penalty units and six months imprisonment where recklessness is involved and 200 penalty units and six months imprisonment where there is an intention to offend.
(c) The reasonable steps defence provided under the model has been replaced with a reasonable steps exception to satisfy the requirements of the ACT Human Rights Act 2004. In general, the prosecution should be required to prove all aspects of the criminal offence beyond reasonable doubt. Consistent with the presumption of innocence, the onus of proof should only be placed on the defendant to prove a particular matter, including a statutory defence in exceptional circumstances. A change from a defence to an exception changes the burden of proof on the defendant from a legal burden to an evidential burden.
(d) The inspection and search provisions have been revised to reflect the standard provisions for the ACT which are human rights compliant. Having standard laws with a general applicability for all ACT regulatory regimes ensures that when the provisions are litigated there is a consistent
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .