Hansard debates

Jaclyn SYMES (Northern Victoria – Treasurer, Minister for Industrial Relations, Minister for Development Victoria and Precincts) (12:13): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Roads, Road Safety and Ports Legislation Amendment Bill 2026 (the Bill).

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

Overview of the Bill

The purpose of the Bill is to:

• amend the Road Safety Act 1986 (the Act) to provide for the use of point to point average speed limit enforcement in Victoria, to include its use on roads with multiple speed limits and to clarify its use on a network of roads or where temporary speed limits are in place;

• to amend the Heavy Vehicle National Law Application Act 2013 in relation to emergency services exemptions from certain fatigue management requirements;

• to amend the Road Management Act 2004 to provide for the temporary declaration of roads by the Head, Transport for Victoria;

• to amend toll road legislation to transfer functions from the Secretary to the Department of Transport and Planning to the Head, Transport for Victoria and to make minor and technical amendments to that legislation;

• to amend the Port Management Act 1995 in relation to information gathering and charges; and

• to make other minor and technical amendments to the Road Safety Act 1986 and other Acts.

Human rights issues

The following rights are relevant to the Bill:

• right to freedom of movement (s 12); and

• right to be presumed innocent (s 25(1)).

Right to freedom of movement

Section 12 of the Charter provides that every person lawfully within Victoria has the right to move freely within Victoria, to enter and leave Victoria, and to choose where to live in Victoria. The right extends, generally, to movement without impediment throughout the State, and a right of access to places and services used by members of the public, subject to compliance with regulations legitimately made in the public interest. The right does not extend to any positive obligation on the State to promote freedom of movement.

Clause 30 of the Bill inserts new Division 1A into the Road Management Act 2004 (RM Act) and new s 16A which allows the Head, Transport for Victoria, to make a temporary declaration of road in certain circumstances, including if the road is already open to the public and the Head, Transport for Victoria, believes that it is in the interests of the public for the road to be immediately opened to the public. The temporary road declaration may be for a period of no more than a year, with one further extension of up to a year allowed by new s 16C. New s 16E provides that once a temporary road declaration expires or is revoked, the road the subject of the declaration is taken to have been discontinued in accordance with s 12. Section 16E(3) then provides that for the avoidance of doubt, s 10 of the RM Act applies to a road discontinued under that section, and the rights of the public under that Act or at common law in relation to a public highway created by the temporary road declaration are extinguished.

The making of a temporary road declaration promotes freedom of movement by enabling the public to access roads more quickly and is intended to grant use of a road while administrative processes are still being undertaken. While it is intended that a temporary road declaration would be followed by a permanent road declaration under s 11 of the Act, such that relevant rights in respect of a public highway remain, there may be rare circumstances in which a temporary road declaration does expire or is revoked and the road is discontinued. This will result in members of the public having any residual rights in relation to a public highway under the RM Act and the common law extinguished, including the ability to access and travel on that road. This in turn is relevant to the right to freedom of movement, given the practical effect of this statutory provision is to inhibit a person’s right to freely moving along that road. However, as the later extinguishment of public highway rights occurs in the context where such rights were temporarily conferred, in my view, the removal of a temporary benefit that is intended to be time-limited does not in itself constitute a limit to the right to freedom of movement.

However, to the extent the right is limited, I am of the view that any limit is reasonable and justified in the circumstances, given the purpose of the temporary road declaration is to open a road to the public where there is an urgent need, and it is in the public interest, but various administrative processes have not yet been completed, for example the required consents from Ministers or municipal councils and relevant road authorities have not been received or the boundaries of the road have not yet been fully determined. The circumstances in which a temporary road declaration is not made permanent, and the public’s rights in relation to a public highway are extinguished, would be rare, and would have a legitimate purpose such as public safety. The application of s 10 of the RM Act and the extinguishment of common law rights and rights under the RM Act is the current position when a road ceases to be a road, so clause 30 of the Bill does not alter the status quo in this regard. Finally, any limit on the right to freedom movement would be minimal, with road users able to find alternative routes to continue to move freely around Victoria.

Accordingly, I am satisfied that clause 30 is compatible with the Charter.

Right to be presumed innocent

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

Reasonable excuse defences

Clause 50 of the Bill inserts new ss 91AAB and 91AAD into the Port Management Act 1995. New s 91AAB provides that an owner of a cargo vessel that loads or unloads cargo at a prescribed commercial trading port must provide prescribed shipping information to Ports Victoria within a specific timeframe – failure to do so without reasonable excuse is an offence. Similarly, new s 91AAD of the Bill provides that an operator of a prescribed terminal within the port of Melbourne must provide prescribed information, relating to container trucks accessing the terminal, to the Secretary to the Department of Transport and Planning within a specific time and in specified form, and failure to do so without reasonable excuse constitutes an offence.

By creating a ‘reasonable excuse’ exception, these offences place an evidential burden on the accused, in that they require the accused to raise evidence of a reasonable excuse, which is relevant to the right to be presumed innocent. However, in doing so, this offence does not transfer the legal burden of proof. Once the accused has pointed to evidence of a reasonable excuse, which will ordinarily be peculiarly within their knowledge, the burden shifts back to the prosecution to prove the essential elements of the offence. The Supreme Court has held that an evidential onus of this kind does not limit the right to be presumed innocent.

Accordingly, I consider clause 50 is compatible with the Charter.

Evidentiary presumptions

A number of clauses in the Bill contain a presumption that in the absence of evidence to the contrary, certain evidence amounts to proof of certain facts. The presumptions are relevant to the right to be presumed innocent because they facilitate the prosecution to establish the elements of an offence without being required to prove certain necessary facts to the legal standard, and place an onus on an accused to raise contrary evidence before a prosecution is required to prove these matters.

Point to point speed averaging

Part 2 of the Bill relates to point to point speed averaging for speeding offences in the Act or the Road Safety Road Rules 2017. Clause 7 inserts new ss 65AB and 65AC into the Act.

Section 65AB makes it an offence for a driver to exceed the average speed limit on the total length of road between two detection points, which is determined by a mathematical formula prescribed by new s 65AC. Several clauses of the Bill, such as 5, 6 and 13–20, amend the definitions of various offence provisions in the Act, or provisions that provide for specific sanctions such as immediate licence suspension, to include the offence of ‘exceeding the average speed limit’, so that such an offence is covered by these provisions.

New s 78AA inserted by clause 9 then provides that in proceedings for an offence against ss 64 or 65AB(1) of the Act, where the average speed at which a motor vehicle or trailer travelled is relevant, and where the prosecution relies on the average speed of the motor vehicle or trailer between two detection points on a total length of road, the average speed calculated in accordance with the mathematical formula in new s 78AA is evidence of the average speed at which the motor vehicle or trailer travelled, in the absence of evidence to the contrary.

New s 79B inserted by clause 11 of the Bill provides that where the speed limit applying to the length of road on which the motor vehicle or trailer travelled is indicated by a variable speed limit sign, and where the speed or average speed at which a motor vehicle or trailer travelled along the length of road is relevant, in the absence of evidence to the contrary, the speed limit indicated by the variable speed limit sign on that occasion is proof of the speed limit that applies to the driver. If it is not practicable to determine the speed limit indicated by the variable speed limit sign on the relevant occasion, the speed limit is the greater of the speed limit that would normally apply to that length of road, or the maximum speed limit displayed by the variable speed limit sign at any time.

Clause 11 of the Bill also inserts new s 79C, which deems that a certificate issued by the Head, Transport for Victoria that certifies the maximum speed limit and indicated by a variable speed limit sign that applies to a length of road, is proof in any proceeding, in the absence of evidence to the contrary, of the facts and matters contained in it, namely the maximum speed limit. New s 79D, also inserted into the Act by clause 11 of the Bill, provides that in any criminal proceeding where the fact that a motor vehicle or trailer was present at a detection point on any occasion is relevant, evidence of that fact as indicated or determined on the relevant occasion by a prescribed road safety camera or an image or message produced by a prescribed road safety camera or by a prescribed process, in the absence of evidence to the contrary, is proof of the fact that the motor vehicle or trailer was present at the detection point on that occasion.

Division 2 of Part 2 of the Bill amends the Heavy Vehicle National Law Application Act 2013 to also adopt similar changes in relation to point to point speed averaging in certain circumstances. For example, clause 24 inserts new s 32A which deems as fact (in the absence of evidence to the contrary) the average speed at which a heavy vehicle was travelling, as being the average speed the heavy vehicle was travelling on a length of road between two detection points, as determined by the mathematical formula outlined in subsection (3). Clause 26 inserts ss 34A and 34B which concern evidence of speed limits and maximum speed limits being indicated by a variable speed limit sign, and inserts new s 34C which deems as fact that a heavy vehicle was present at a detection point on any occasion where its presence was indicated by a prescribed road safety camera or an image or messaged produced by a prescribed road safety camera or by a prescribed process.

Analysis

These provisions are relevant to the presumption of innocence as they deem a fact to be proved in the absence of contrary evidence, and thus reduce the prosecution’s burden to prove an accused’s guilt.

To the extent that such deeming provisions limit this right, I consider any limits to be reasonably justified. These offences are important to upholding road safety and preventing public harm, with point to point speed averaging encouraging consistent, safer driving over long distances (rather than at specific, known camera locations). The deeming provisions are essential to facilitating the prosecution of such offences due to the evidentiary, logistical and legal difficulties of proving an average speed over a long distance or establishing the veracity of a camera image using traditional, manual evidence. These provisions also allow for the efficient prosecution of high volume offences that would otherwise overwhelm the court system if they required full and manual technical evidence to establish the veracity of every record produced by the cameras.

Further, these provisions allow an accused to challenge the evidence being deemed. Once a person has adduced some evidence to the contrary of the assumed fact, the burden of proof shifts to the prosecution to prove the necessary facts comprising the elements of the offence. Further, these provisions relate to the enforcement of offences to which it is appropriate to attach deeming provisions, being strict liability road safety offences, which are regulatory in nature, carry little stigma and a low prescribed penalty – and relate to maintaining the safe and orderly operation of the roads.

I am therefore of the view that these evidentiary presumption provisions are compatible with the right to be presumed innocent under s 25(1) of the Charter.

The Hon. Lizzie Blandthorn MP

Deputy Leader of the Government in the Legislative Council

Minister for Disability