Accident Towing Services Amendment Act 2011FILE/11-040a.docx · Web viewAccident Towing Services Amendment Act 2011. ... motor vehicle from the road accident scene at which that

Accident Towing Services Amendment Act 2011 No. 40 of 2011

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 1

1 Purpose 12 Commencement 2

PART 2—ACCIDENT TOWING SERVICES ACT 2007 3

3 Purpose 34 Definitions 35 New section 9A inserted 4

9A Offence to use vehicle other than tow truck to provide accident towing services for hire or reward 4

6 Offence to drive licensed tow truck or tow truck providing accident towing services without accreditation 5

7 Immediate suspension of accreditation 68 New section 146A inserted 6

146A Licence holder must provide copy of authority to tow if requested by owner 6

9 Storage of accident damaged motor vehicles 710 Provisions concerning damaged vehicle storage 811 Section 152 repealed 912 Owner not liable for repairs carried out at unauthorised place 913 VicRoads may suspend accreditation on service of notice 914 Part 8 heading substituted 915 New Division 1 heading inserted 1016 Minister to determine charges for accident towing services

and other services 1017 Determinations of charges 1018 New Divisions 2 to 4 inserted 10

Division 2—Review of charges 10

212A Periodic review of charges 10212B Additional review at Minister's direction 12212C Conduct of review 13212D Objectives not to apply 14212E Powers relating to reviews 14212F Recommendations 15

1

212G Tabling of recommendations 16

Division 3—Indexation of charges 17

212H Charges to be adjusted for CPI 17

Division 4—Offences 19

212I Offence to charge unreasonable sum or sum different to charge determined under section 211 19

212J Offence to pay for obtaining work in respect of accident damaged motor vehicle 20

212K Offence to pay for handing over work in respect of accident damaged motor vehicle 20

19 New Part 8 heading inserted 2020 Regulations 2121 Further amendment of the Accident Towing Services

Act 2007 21

PART 3—TRANSPORT (COMPLIANCE AND MISCELLANEOUS) ACT 1983 22

22 Reference by Minister 22

PART 4—ESSENTIAL SERVICES COMMISSION ACT 2001 23

23 Functions of the Commission 2324 Restriction on disclosure of confidential information 23

PART 5—REPEAL OF AMENDING ACT 24

25 Repeal of amending Act 24__________________

SCHEDULE—Further Amendment of the Accident Towing Services Act 2007 25

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ENDNOTES 26

Accident Towing Services Amendment Act 2011†

No. 40 of 2011

[Assented to 6 September 2011]

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purpose

The main purposes of this Act are—

(a) to amend the Accident Towing Services Act 2007 in order to—

(i) provide for offences relating to the operation of tow trucks and the provision of services relating to the

Victoria

1

towing, storage and salvage of accident damaged motor vehicles;

(ii) clarify provisions relating to the suspension of tow truck driver accreditations;

(iii) regulate charges for salvage services;

(iv) ensure that charges for accident towing services, motor vehicle storage and salvage are reasonable;

(v) enable the Essential Services Commission to review charges determined for towing and related services;

(vi) enable charges determined for towing and related services to be adjusted for CPI; and

(b) to make consequential and related amendments to the Essential Services Commission Act 2001 and the Transport (Compliance and Miscellaneous) Act 1983.

2 Commencement

This Act comes into operation on the day after the day on which this Act receives the Royal Assent.

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Section Page

2

s. 2

PART 2—ACCIDENT TOWING SERVICES ACT 2007

3 Purposes. 3

See:Act No.30/2007and amendingAct Nos28/2009, 68/2009, 93/2009 and 6/2010.LawToday:www.legislation.vic.gov.au

After section 1(a)(v) of the Accident Towing Services Act 2007, insert—

"(vi) providing for matters relating to the salvage of accident damaged motor vehicles; and".

4 Definitions

(1) In section 3(1) of the Accident Towing Services Act 2007, insert the following definitions—

"basic salvage service means the service of salvaging a motor vehicle—

(a) using one or more tow trucks that are not heavy tow trucks; and

(b) without using a mobile crane;

heavy tow truck means a tow truck that is capable of towing a motor vehicle that has a gross vehicle mass of 4 tonnes or more;".

(2) In section 3(1) of the Accident Towing Services Act 2007, for the definition of salvage substitute—

Accident Towing Services Amendment Act 2011No. 40 of 2011

3

"salvage, in the case of an accident damaged motor vehicle that, as a result of the accident—

(a) is in a location that is not a road or a road related area; or

(b) is embedded in a building or in an object that is not a motor vehicle; or

(c) is overturned or on its side—

means the moving of the motor vehicle to a place on a road or road related area or into an upright position or both so that it may be towed by a tow truck without assistance;".

(3) In section 3(1) of the Accident Towing Services Act 2007, for paragraph (c) of the definition of tow, substitute—

"(c) lifting the motor vehicle for the purpose of towing the motor vehicle—

but does not include salvage of the motor vehicle;".

(4) After section 3(4) of the Accident Towing Services Act 2007, insert—

"(4A) In this Act, a reference to a charge determined under section 211 includes a reference to a charge that has been indexed under Division 3 of Part 7A.".

5 New section 9A inserted

After section 9 of the Accident Towing Services Act 2007, insert—

"9A Offence to use vehicle other than tow truck to provide accident towing services for hire or reward

s. 5


4

A person must not drive for hire or reward a motor vehicle that is not a tow truck for the purpose of—

(a) towing an accident damaged motor vehicle from the road accident scene at which that motor vehicle was damaged; or

(b) clearing a road accident scene.

Penalty: 60 penalty units.".

6 Offence to drive licensed tow truck or tow truck providing accident towing services without accreditation

For section 98(1) of the Accident Towing Services Act 2007, substitute—

"(1) A person who does not hold a tow truck driver accreditation (where subsection (1B) does not apply) must not drive a licensed tow truck or a tow truck that is being used for the purposes of providing accident towing services.

Penalty: 60 penalty units.

(1A) A person who does not hold a tow truck driver accreditation (where subsection (1C) does not apply) must not accompany the driver of a licensed tow truck or a tow truck that is being used for the purposes of providing accident towing services.


(1B) A person who does not hold a tow truck driver accreditation where—

(a) that person has previously held a tow truck driver accreditation and has failed to renew that accreditation; and

s. 6


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(b) an application by that person for the renewal of that accreditation would not be refused under section 107, 108 or 109—

must not drive a licensed tow truck or a tow truck that is being used for the purposes of providing accident towing services.


(1C) A person who does not hold a tow truck driver accreditation where—

(a) that person has previously held a tow truck driver accreditation and has failed to renew that accreditation; and

(b) an application by that person for the renewal of that accreditation would not be refused under section 107, 108 or 109—

must not accompany the driver of a licensed tow truck or a tow truck that is being used for the purposes of providing accident towing services.


7 Immediate suspension of accreditation

In section 128(6) of the Accident Towing Services Act 2007, for "this section" substitute "subsection (1)".

8 New section 146A inserted


"146A Licence holder must provide copy of authority to tow if requested by owner

s. 7


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The holder of a tow truck licence must provide the owner of an accident damaged motor vehicle with a copy of an authority to tow in relation to the towing of that motor vehicle by a tow truck specified in the tow truck licence if requested to do so by the owner and without charge.


9 Storage of accident damaged motor vehicles

(1) In the heading to section 150 of the Accident Towing Services Act 2007, for "Storage" substitute "Initial towing and storage".

(2) For section 150(1) of the Accident Towing Services Act 2007, substitute—

"(1) The holder of a tow truck licence for a tow truck that is towing an accident damaged motor vehicle under an authority to tow must ensure that the motor vehicle is towed to the place specified in the authority to tow unless—

(a) it is being returned to the owner of the motor vehicle; or

(b) it is being removed to another place with the written authority of the owner of the motor vehicle or other valid authority.


(1A) The holder of a tow truck licence for a tow truck that has towed an accident damaged motor vehicle to the place specified in the authority to tow in accordance with subsection (1) must ensure that the motor

s. 9


7

vehicle is stored at a secure area at the place specified in the authority to tow at all times unless—

(a) it is being removed to or stored at a secure area that is—

(i) near the place specified in the authority to tow; and

(ii) approved by VicRoads as a place at which the holder of the tow truck licence may store accident damaged motor vehicles; or

(b) it is being removed from a secure area described in paragraph (a) and towed to the place specified in the authority to tow.


(3) After section 150(2) of the Accident Towing Services Act 2007, insert—

"(3) The holder of a tow truck licence for a tow truck that is towing an accident damaged motor vehicle under an authority to tow is not entitled to recover any sum or charge from the owner of the motor vehicle for towing the motor vehicle between the place specified in the authority to tow and any place at which the holder of the tow truck licence stores, or intends to store, the motor vehicle.

(4) If an accident damaged motor vehicle is being stored at a secure area or place in accordance with this section, the holder of the tow truck licence for the tow truck that towed the motor vehicle to that secure area or place must take all reasonable steps to ensure that—


8

(a) the motor vehicle is not lost or damaged; and

(b) nothing in or on the motor vehicle is lost or damaged.

Penalty: In the case of a natural person, 20 penalty units;

In the case of a body corporate, 100 penalty units.".

10 Provisions concerning damaged vehicle storage

In section 151(1) of the Accident Towing Services Act 2007, omit "at a secure place".

11 Section 152 repealed

Section 152 of the Accident Towing Services Act 2007 is repealed.

12 Owner not liable for repairs carried out at unauthorised place

In section 155 of the Accident Towing Services Act 2007, for paragraph (a) substitute—

"(a) the vehicle has been towed from the road accident scene to a place other than—

(i) the place specified in the authority to tow; or

(ii) a secure area near the place specified in the authority to tow that has been approved by VicRoads as a place in which the holder of the tow truck licence for the tow truck that towed the vehicle may store accident damaged motor vehicles; and".

13 VicRoads may suspend accreditation on service of notice

s. 10s. 11


9

(1) In the heading to section 167 of the Accident Towing Services Act 2007, for "may" substitute "must".

(2) In section 167(1) of the Accident Towing Services Act 2007, for "may" substitute "must".

14 Part 8 heading substituted

For the heading to Part 8 of the Accident Towing Services Act 2007, substitute—

"PART 7A—CHARGES".

15 New Division 1 heading inserted

Before section 211 of the Accident Towing Services Act 2007, insert—

"Division 1—Determination of charges".

16 Minister to determine charges for accident towing services and other services

In section 211 of the Accident Towing Services Act 2007—

(a) after "Minister may" insert "from time to time";

(b) in paragraph (b), for "motor vehicles—" substitute "motor vehicles;";

(c) after paragraph (b) insert—

"(c) basic salvage services—".

17 Determinations of charges

For section 212(1)(a) of the Accident Towing Services Act 2007, substitute—

s. 15


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"(a) has received a recommendation from the Commission under Division 2 on the matter; and".

18 New Divisions 2 to 4 inserted


"Division 2—Review of charges

212A Periodic review of charges

(1) The Commission must, at the time specified in subsection (3), conduct and complete a review and make a recommendation to the Minister as to all of the following—

(a) whether or not any amount determined by the Minister under section 211 is appropriate;

(b) in relation to accident towing services, services relating to the storage of accident damaged vehicles and salvage services for which no amount has been determined under section 211—

(i) whether or not that service should be subject to a determination under that section; and

(ii) if the Commission considers that the service should be subject to a determination, what that determination should be;

(c) a figure for the productivity adjustment of those services that are or are to be subject to a determination under section 211;

(d) in relation to accident towing services, the storage of accident damaged motor vehicles or salvage, any matter on

s. 18


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which the Committee may advise, conduct inquiries or make recommendations under section 10 of the Essential Services Commission Act 2001 that the Minister specifies in writing.

(2) The Minister must consult with the Minister administering the Essential Services Commission Act 2001 before specifying a matter for review under subsection (1)(d).

(3) The Commission must conduct and complete a review and make a recommendation to the Minister under this section—

(a) not later than 30 June 2014; and

(b) before the expiry of each subsequent period of 4 years commencing from the date that the last review commenced.

212B Additional review at Minister's direction

(1) The Minister may at any time, by written direction, require the Commission to conduct and complete a review and make a recommendation to the Minister as to whether or not an amount determined under section 211 is appropriate.

(2) The Minister must consult with the Minister administering the Essential Services Commission Act 2001 before requiring the Commission to conduct a review and make a recommendation under subsection (1).

(3) A written direction under this section must specify terms of reference for the review.

(4) The Minister may—


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(a) specify a period within which a recommendation is to be made to the Minister under subsection (1);

(b) require the Commission to make a draft copy of the recommendation publicly available or available to specified persons or bodies during the review;

(c) require the Commission to consider specified matters;

(d) give the Commission specific directions in respect of the conduct of the review;

(e) specify objectives that the Commission is to have in performing its functions and exercising its powers in relation to the review.

(5) If the Minister has directed a matter to the Commission for review under subsection (1), the Minister may, by written notice given to the Commission, withdraw or amend the direction at any time before the Minister has received the recommendation from the Commission.

(6) The Minister must cause notice of a direction given to the Commission under this section to be published on an Internet site maintained by VicRoads.

212C Conduct of review

(1) Subject to this Act and any directions under section 212B, the Commission may conduct a review under this Division in any manner the Commission considers appropriate.

(2) In conducting a review, the Commission is not bound by the rules of evidence and may inform itself on any matter in any way it thinks fit.

s. 18s. 18


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(3) The Commission may receive written submissions or statements.

(4) If the Commission holds a public hearing—

(a) the Commission has a discretion as to whether any person may appear before the Commission in person or be represented by another person;

(b) the Commission may determine that the hearing, or part of the hearing, be held in private if it is satisfied that—

(i) it would be in the public interest; or

(ii) the evidence is of a confidential or commercially sensitive nature.

(5) In conducting a review, the Commission—

(a) may consult with any person that it considers appropriate;

(b) may hold public seminars and hold workshops;

(c) may establish working groups and task forces.

212D Objectives not to apply

Except to the extent (if any) that the Minister otherwise determines, the objectives of the Commission under the Essential Services Commission Act 2001 or any other Act do not apply to the functions and powers of the Commission under this Division.

212E Powers relating to reviews

(1) The Commission may serve upon any person—

(a) a notice requiring that person to provide evidence in writing;

s. 18


14

(b) a notice to produce specified documents;

(c) a summons to appear before the Commission to provide evidence.

(2) The Commission may make an order for the manner of service, including substituted service, of a notice or summons under subsection (1).

(3) A person must not, without lawful excuse, fail to comply with a notice or summons of the Commission.


(4) It is a lawful excuse for the purposes of subsection (3) that compliance may tend to incriminate the person or make the person liable to a penalty or forfeiture.

(5) A person must not give information to the Commission that he or she knows is false or misleading.

Penalty: 120 penalty units or imprisonment for 6 months.

(6) A person must not—

(a) threaten, intimidate or coerce another person; or

(b) take, threaten to take, incite or be involved in any action that causes another person to suffer any loss, injury or disadvantage—

because that other person assisted, or intends to assist, any review conducted by the Commission.


s. 18


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(7) Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person because of the making in good faith of a statement, or the giving in good faith of a document or information, to the Commission in connection with a review under this Division, whether or not the statement is made, or the document or information is given, in connection with a written submission or a public hearing.

212F Recommendations

(1) The Commission must submit a copy of its recommendation under section 212A or 212B to the Minister.

(2) If, in the opinion of the Commission, a recommendation will contain confidential or commercially sensitive information, the Commission must divide the recommendation into—

(a) a document containing the confidential or commercially sensitive information; and

(b) another document containing the rest of the recommendation.

(3) Any information that the Commission may disclose under section 38 of the Essential Services Commission Act 2001 is not confidential or commercially sensitive for the purposes of subsection (2) unless an appeal panel, within the meaning of that Act, states that it is imposing a restriction under section 56(7)(b)(i) of that Act.

212G Tabling of recommendations


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(1) The Minister must cause a copy of a recommendation submitted under section 212F to be laid before each House of the Parliament within 7 sitting days of the House after receiving the recommendation.

(2) The Minister must, after the recommendation has been laid before each House of the Parliament, or if the Parliament is not sitting, within 30 days after receiving a recommendation, ensure that a copy of the recommendation is available for public inspection.

(3) After the Minister has made a recommendation publicly available, the Commission must ensure that copies are made publicly available.

(4) If the Commission submits a recommendation to the Minister in the form required by section 212F(2), a reference to the recommendation in subsections (1), (2) and (3) is to be read as a reference to the document described in section 212F(2)(b).

Division 3—Indexation of charges

212H Charges to be adjusted for CPI

(1) Subject to subsection (2), an amount of a charge determined under section 211 must be varied, in respect of each financial year, in accordance with the formula—

where—

"A" is the amount of the charge for the financial year immediately preceding the relevant year;

s. 18s. 18


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"B" is the transportation group consumer price index for Melbourne published by the Australian Statistician in respect of the March quarter of the financial year immediately preceding the relevant year;

"C" is the transportation group consumer price index for Melbourne published by the Australian Statistician in respect of the March quarter of the financial year immediately preceding the financial year preceding the relevant year;

"D" is the productivity adjustment figure specified in the recommendation under section 212A most recently made by the Commission or, if the Commission has not made a recommendation under section 212A that relates to the relevant year, "D" is 0∙005.

(2) If it is necessary for the purposes of this section to calculate an amount that consists of or includes a fraction of a whole dollar, the amount is taken to be calculated in accordance with this section if the calculation is made to the nearest whole 10 cents.

(3) If the variation under subsection (1) of the amount of a charge would reduce the amount of that charge, the amount of the charge must not be varied under subsection (1).

(4) If the amount of a charge is varied under subsection (1), VicRoads must publish a

s. 18


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notice in the Government Gazette specifying—

(a) the service to which the charge relates; and

(b) the amount of the charge as varied; and

(c) the date from which the charge as varied applies.

(5) In this section—

March quarter means the period of three months in any year that ends on 31 March;

relevant year means the financial year for which the adjusted amount is being varied.

Division 4—Offences

212I Offence to charge unreasonable sum or sum different to charge determined under section 211

(1) A person must not charge an amount for the provision of an accident towing service, for the storage of an accident damaged motor vehicle or for the provision of salvage services unless—

(a) if a determination for the service has been made under section 211, the charge is determined in accordance with that determination; or

(b) if no determination for the service has been made under section 211, the charge is a reasonable charge for the provision of that service.


s. 18


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(2) Without limiting the factors the court may consider in determining what is a reasonable charge for the provision of an accident towing service for the purposes of subsection (1)(b), the court must consider those of the following factors that are relevant—

(a) the nature of the service provided;

(b) the day on which the service is provided;

(c) the time at which the service is provided;

(d) any administration costs incurred in the provision of the service;

(e) the amount that would be charged for the provision of a similar service that is not an accident towing service;

(f) the amount that would be charged for the same or similar service by any other person providing accident towing services in the same or similar area.

(3) In any proceedings against a person for an offence under subsection (1), if the offence is proved, the court may order that person to refund any amount paid in excess of the amount that may be charged under subsection (1).

212J Offence to pay for obtaining work in respect of accident damaged motor vehicle

A person must not, so as to obtain any work in respect of an accident damaged motor vehicle, offer to pay any consideration, other than any charges for the towing or storage of the motor vehicle charged in accordance with this Act.



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212K Offence to pay for handing over work in respect of accident damaged motor vehicle

A person must not, so as to hand over any work to another in respect of an accident damaged motor vehicle, receive any consideration, other than any charges for the towing or storage of the motor vehicle charged in accordance with this Act.


19 New Part 8 heading inserted

Before section 213 of the Accident Towing Services Act 2007, insert—

"PART 8—MISCELLANEOUS".

20 Regulations

After section 223(1)(l) of the Accident Towing Services Act 2007, insert—

"(la) providing the service of salvaging a motor vehicle;".

21 Further amendment of the Accident Towing Services Act 2007

The section, or heading of a section, of the Accident Towing Services Act 2007 specified in an item in the Schedule is amended as set out in that item.

__________________

s. 19s. 20


21

PART 3—TRANSPORT (COMPLIANCE AND MISCELLANEOUS) ACT 1983

22 Reference by Ministers. 22

See:Act No.9921.Reprint No. 15as at1 July 2010and amendingAct Nos13/2009, 93/2009, 16/2010, 19/2010, 45/2010, 52/2010, 65/2010, 75/2010 and 79/2010.LawToday:www.legislation.vic.gov.au

(1) In section 186(1)(b) of the Transport (Compliance and Miscellaneous) Act 1983, for "rates; or" substitute "rates—".

(2) Section 186(1)(c) of the Transport (Compliance and Miscellaneous) Act 1983 is repealed.

__________________


22

PART 4—ESSENTIAL SERVICES COMMISSION ACT 2001

23 Functions of the Commissions. 23

See:Act No.62/2001.Reprint No. 3as at1 July 2008and amendingAct Nos70/2007 and 6/2010.LawToday:www.legislation.vic.gov.au

(1) In section 10(k) of the Essential Services Commission Act 2001, for "2007." substitute "2007;".

(2) After section 10(k) of the Essential Services Commission Act 2001, insert—

"(l) to perform the functions conferred on the Commission by the Accident Towing Services Act 2007.".

24 Restriction on disclosure of confidential information

In section 38 of the Essential Services Commission Act 2001—

(a) in subsection (1)(a), after "or 51" insert "or under section 212E of the Accident Towing Services Act 2007";

(b) in subsection (2)(c)(iii), for "or 52" substitute "of this Act or section 212F of the Accident Towing Services Act 2007";

(c) in subsection (3)(c), for "or 52(2)" substitute "of this Act or section 212F(2) of the Accident Towing Services Act 2007".


23

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PART 5—REPEAL OF AMENDING ACT

25 Repeal of amending Act

This Act is repealed on 1 July 2012.Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

__________________

s. 25


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SCHEDULE

Section 21

FURTHER AMENDMENT OF THE ACCIDENT TOWING SERVICES ACT 2007

1 In section 3(1), the definition of non-limited tow truck licence is repealed.

2 In section 3(1), insert the following definition—

"standard tow truck licence means a tow truck licence that is not a limited tow truck licence;".

3 In the heading to section 17, for "non-limited" substitute "standard".

4 In section 17, for "non-limited" substitute "standard".


6 In section 18(1), for "non-limited" substitute "standard".

7 In section 20(2), for "non-limited" substitute "standard".


9 In section 21, for "non-limited" substitute "standard".

10 In section 23(1), for "non-limited" (wherever occurring) substitute "standard".

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Sch.


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ENDNOTES

Endnotes


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† Minister's second reading speech—

Legislative Assembly: 5 May 2011

Legislative Council: 30 June 2011

The long title for the Bill for this Act was "A Bill for an Act to amend the Accident Towing Services Act 2007, to make consequential and related amendments to other Acts and for other purposes."

Documents

Accident Towing Services Amendment Act 2011FILE/11-040a.docx · Web viewAccident Towing Services Amendment Act 2011. ... motor vehicle from the road accident scene at which that