Div 2AInjunctions

Division 2A—Injunctions 596A—Injunctions If a court convicts a person of an offence against this Law, the court may issue an injunction requiring the person to cease contravening this Law. An injunction may also be obtained under section 576E for noncompliance with an improvement notice or prohibition notice. Division 3—Commercial benefits penalty orders 597—Commercial benefits penalty order (1) If a court convicts a person of an offence against this Law, the court may, on application by the prosecutor, make an order (a commercial benefits penalty order) requiring the person to pay, as a fine, an amount not exceeding 3 times the amount estimated by the court to be the gross commercial benefit— (a) received or receivable, by the person or by an associate of the person, from the commission of the offence; and (b) for a journey that was interrupted or not commenced because of action taken by an authorised officer in connection with the commission of the offence—that would have been received or receivable, by the person or by an associate of the person, from the commission of the offence had the journey been completed. (2) In estimating the gross commercial benefit, the court may take into account— (a) benefits of any kind, whether or not monetary; and (b) any other matters it considers relevant, including, for example— (i) the value of any goods involved in the offence; and (ii) the distance over which the goods were, or were to be, carried. (3) However, in estimating the gross commercial benefit, the court must disregard any costs, expenses or liabilities incurred by the person or by an associate of the person. (4) Nothing in this section prevents the court from ordering payment of an amount that is less than the estimated gross commercial benefit. Division 4—Cancelling or suspending registration 598—Power to cancel or suspend vehicle registration (1) This section applies if a court convicts a person of— (a) an offence against this Law relating to a contravention of a mass, dimension or loading requirement constituting a severe risk breach; or (b) an offence against this Law other than an offence relating to a contravention of a mass, dimension or loading requirement. (2) The court may make an order that the registration of a heavy vehicle in relation to which the offence was committed and of which the person is a registered operator is— (a) cancelled; or (b) suspended for a stated period. (3) If the court makes an order under subsection (2) against a person, the court may also make an order that the person, or an associate of the person, is disqualified from applying for the registration of the heavy vehicle for a stated period. (4) If the court considers that another person who is not present in court may be substantially affected by an order under subsection (2) or (3), the court may issue a summons to that person to show cause why the order should not be made. (5) The court is to ensure that the registration authority for the heavy vehicle is notified of the decision to make an order under subsection (2) or (3) and the terms of the order, but failure to do so does not invalidate the decision or the order. Division 5—Supervisory intervention orders 599—Application of Division 5 This Division applies if a court— (a) convicts a person (the convicted person) of an offence against this Law; and (b) considers the person to be, or likely to become, a systematic or persistent offender of this Law having regard to the circumstances of offences against this Law and previous corresponding laws for which the person has previously been convicted. 600—Court may make supervisory intervention order (1) The court may, on application by the prosecutor or the Regulator, make an order (a supervisory intervention order) requiring the convicted person, at the person's own expense and for a stated period of not more than 1 year, to do 1 or more of the following: (a) stated things the court considers will improve the person's compliance with this Law, or stated aspects of this Law, including, for example— (i) appointing staff to, or removing staff from, particular positions; or (ii) training and supervising staff; or (iii) obtaining expert advice about maintaining compliance with this Law, or stated aspects of this Law; or (iv) installing equipment for monitoring or managing compliance with this Law, or stated aspects of this Law, including, for example, intelligent transport system equipment; or (v) implementing practices, systems or procedures for monitoring or ensuring compliance with this Law, or stated aspects of this Law; (b) implement stated practices, systems or procedures for monitoring or ensuring compliance with this Law, or stated aspects of this Law, subject to the direction of the Regulator or a person nominated by the Regulator; (c) give compliance reports about the convicted person to the Regulator or the court (or both), in a stated way and for stated periods; (d) appoint a person to have the following responsibilities: (i) helping the convicted person to improve the convicted person's compliance with this Law or stated aspects of this Law; (ii) monitoring the convicted person's compliance with this Law or stated aspects of this Law and with the order; (iii) giving compliance reports about the convicted person to the Regulator or the court (or both), in a stated way and for stated periods. compliance report, about a person in relation to whom a supervisory intervention order is made, means a report about the person's compliance with this Law, stated aspects of this Law, or the order, including, for example, a report containing stated information about— (a) things done by the person to ensure compliance with this Law or stated aspects of this Law; and (b) the effect of the things mentioned in paragraph (a). 601—Limitation on making supervisory intervention order The court may make a supervisory intervention order only if the court is satisfied the order is capable of improving the convicted person's ability or willingness to comply with this Law having regard to— (a) the offences against this Law or a previous corresponding law for which the person has previously been convicted; and (b) the offences against this Law or a previous corresponding law for which the person has been proceeded against by way of unwithdrawn infringement notices; and (c) any other offences or other matters that the court considers relevant to the person's conduct in connection with road transport. 602—Supervisory intervention order may suspend other sanctions (1) A supervisory intervention order may direct that any other penalty or sanction imposed for the offence to which it relates is suspended until the order ends unless the court decides there has been a substantial failure to comply with the order. (2) For the purposes of subsection (1), a court may decide that a failure to comply with a supervisory intervention order is a substantial failure if the failure causes, or creates a risk of, serious harm to public safety, the environment or road infrastructure. 603—Amendment or revocation of supervisory intervention order A court that makes a supervisory intervention order may, on application by the Regulator or the person to whom the order applies, amend or revoke the order if the court is satisfied there has been a change in circumstances warranting the amendment or revocation. 604—Contravention of supervisory intervention order A person to whom a supervisory intervention order applies must comply with the order, unless the person has a reasonable excuse. 605—Effect of supervisory intervention order if prohibition order applies to same person (1) This section applies if both a supervisory intervention order and a prohibition order is in force at the same time against the same person. (2) The supervisory intervention order has no effect while the prohibition order has effect. Division 6—Prohibition orders 606—Application of Division 6 This Division applies if a court— (a) convicts a person (the convicted person) of an offence against this Law; and (b) considers the person to be, or likely to become, a systematic or persistent offender of this Law having regard to the circumstances of offences against this Law and previous corresponding laws for which the person has previously been convicted. 607—Court may make prohibition order (1) The court may, on application by the prosecutor or the Regulator, make an order (a prohibition order) prohibiting the convicted person, for a stated period of not more than 1 year, from having a stated role or responsibility associated with road transport. (2) However, the court cannot make a prohibition order prohibiting the convicted person from driving a vehicle or having a vehicle registered or licensed under an Australian road law in the convicted person's name. 608—Limitation on making prohibition order The court may make a prohibition order only if the court is satisfied the convicted person should not continue to have the role or responsibilities prohibited by the order, and that a supervisory intervention order is not appropriate, having regard to— (a) the offences against this Law or a previous corresponding law for which the person has previously been convicted; and (b) the offences against this Law or a previous corresponding law for which the person has been proceeded against by way of unwithdrawn infringement notices; and (c) any other offences or other matters that the court considers relevant to the person's conduct in connection with road transport. 609—Amendment or revocation of prohibition order A court that makes a prohibition order may, on application by the Regulator or the person to whom the order applies, amend or revoke the order if the court is satisfied there has been a change in circumstances warranting the amendment or revocation. 610—Contravention of prohibition order A person to whom a prohibition order applies must comply with the order, unless the person has a reasonable excuse. Division 7—Compensation orders 611—Court may make compensation order (1) A court that convicts a person (the convicted person) of an offence against this Law may make an order (a compensation order) requiring the convicted person to pay the road manager for a road, by way of compensation, an amount the court considers appropriate for loss incurred, or likely to be incurred, by the road manager for damage caused to road infrastructure as a result of the offence. (2) A compensation order may be made on the application of the prosecutor, the Regulator or the road manager. (3) The court may make a compensation order in relation to damage the court considers, on the balance of probabilities, was caused or partly caused by the commission of the offence. (4) The court may make a compensation order— (a) when the court gives its sentence for the offence; or (b) at a later time, but not after the end of the period within which a proceeding for the offence must start under this Law. See section 707A for the period within which a proceeding for an offence against this Law, other than an indictable offence, must start. 612—Assessment of compensation (1) In making a compensation order, the court may assess the amount of compensation required to be paid by the order in the way it considers appropriate, including, for example, by reference to the estimated cost of remedying the damage. (2) In assessing the amount of compensation, the court may have regard to— (a) evidence adduced in connection with the prosecution of the offence; and (b) any evidence not adduced in connection with the prosecution of the offence but adduced in connection with the making of the order; and (c) if the road manager is a public authority— (i) any certificate of the public authority stating that the authority is responsible for maintaining the road infrastructure in relation to which the order is sought; and (ii) any other certificate of the public authority, including, for example, a certificate— (A) estimating the monetary value of all or part of the road infrastructure in relation to which the order is sought; or (B) estimating the monetary value of, or the cost of remedying, the damage to the road infrastructure in relation to which the order is sought; or (C) estimating the extent to which the commission of the offence contributed to the damage to the road infrastructure in relation to which the order is sought; and (d) any other matters the court considers relevant. (3) A person who purportedly signs a certificate of a type mentioned in subsection (2)(c) on behalf of a public authority is presumed, unless the contrary is proved, to have been authorised by the public authority to sign the certificate on the public authority's behalf. 613—Use of certificates in assessing compensation (1) If a public authority proposes to submit a certificate mentioned in section 612(2)(c) in a proceeding for the making of a compensation order, the public authority must give a copy of the certificate to the defendant at least 28 days before the day fixed for the hearing of the proceeding. (2) A certificate of the public authority cannot be used in a proceeding for the making of a compensation order unless the public authority has complied with subsection (1). (3) A defendant who intends to challenge a matter stated in a certificate mentioned in section 612(2)(c) in a proceeding for the making of a compensation order must— (a) give the public authority notice of the intention to challenge the matter; and (b) if the defendant is intending to challenge the accuracy of any measurement, analysis or reading in the certificate— (i) state the reason why the defendant alleges that it is inaccurate; and (ii) state the measurement, analysis or reading that the defendant considers to be correct. (4) The notice must be— (b) given at least 14 days before the day fixed for the hearing of the proceeding. (5) A defendant cannot challenge a matter stated in a certificate mentioned in section 612(2)(c) in a proceeding for the making of a compensation order unless— (a) the defendant has complied with subsections (3) and (4); or (b) the court gives leave to the defendant to challenge the matter, in the interests of justice. 614—Limits on amount of compensation (1) If, in making a compensation order, the court is satisfied that the commission of the offence concerned contributed to damage to road infrastructure but that other factors not connected with the commission of the offence also contributed to the damage, the court must limit the amount of compensation payable under the order to the amount it assesses as being attributable to the defendant's conduct. (2) The amount of compensation payable under a compensation order cannot exceed the monetary jurisdictional limit of the court in civil proceedings. (3) The court may not include in a compensation order any amount for— (a) personal injury or death; or (b) loss of income (whether suffered by the road manager or another entity); or (c) damage to property that is not part of the road infrastructure concerned. 615—Costs The court has the same power to award costs in relation to proceedings for the making of a compensation order as it has in relation to civil proceedings, and the relevant laws applying to costs in relation to civil proceedings before the court apply with any necessary changes to costs in relation to proceedings for the making of a compensation order. 616—Enforcement of compensation order and costs A compensation order, and any award of costs in relation to a proceeding for the making of a compensation order, are taken to be, and are enforceable as, a judgment of the court sitting in civil proceedings. 617—Relationship with orders or awards of other courts and tribunals (1) A compensation order may not be made in favour of a road manager for a road in relation to damage to road infrastructure if another court or tribunal has awarded compensatory damages or compensation in civil proceedings to the road manager in relation to the damage based on the same or similar facts. (2) If a court purports to make a compensation order contrary to subsection (1)— (a) the order is void to the extent it covers the same matters as the matters covered by the other award; and (b) any payments made under the order to the extent to which it is void must be repaid by the road manager. (3) The making of a compensation order in relation to damage to road infrastructure does not prevent another court or tribunal from later awarding damages or compensation in civil proceedings in relation to the damage based on the same or similar facts, but the court or tribunal must take the compensation order into account when making its award. (4) Nothing in this Division affects or limits any liability to pay compensation under another law, other than as provided by this section. Part 4—Provisions about liability Division 3—Defences 626—Definition for Division 3 deficiency, of a vehicle, means— (a) a deficiency of the vehicle or a component of the vehicle, including, for example, the vehicle— (i) contravening a heavy vehicle standard; or (ii) being unsafe; or (b) a deficiency constituted by the absence of a particular thing required to be in, or displayed on, the vehicle, including, for example, a thing required to be in, or displayed on, the vehicle under— (i) a heavy vehicle standard; or (ii) a condition of a heavy vehicle accreditation or a mass or dimension authority. 627—Defence for owner or operator of vehicle if offence committed while vehicle used by unauthorised person (1) This section applies in relation to an offence against this Law that may be committed by a person— (a) in the person's capacity as an owner or operator of a vehicle; and (b) in relation to the use of the vehicle by someone else. (2) Subject to subsection (3), in a proceeding for an offence mentioned in subsection (1), it is a defence for the person charged to prove that, at the relevant time, the vehicle was being used by— (a) a person not entitled (expressly, impliedly or otherwise) to use the vehicle, other than an employee or agent of the person; or (b) an employee of the person who was, at the relevant time, acting outside the scope of the employment; or (c) an agent of the person who was, at the relevant time, acting outside the scope of the agency. (3) If the offence relates to a deficiency of the vehicle, the defence under subsection (2) is not available unless the person charged also proves that— (a) the vehicle had not, before it ceased to be under the person's control, been driven on a road in contravention of this Law arising in connection with the deficiency; and (b) one or more material changes, resulting in the deficiency, had been made after the vehicle had ceased to be under the person's control. 628—Defence for driver of vehicle subject to a deficiency (1) This section applies to an offence against this Law relating to a deficiency of a heavy vehicle. (2) In a proceeding for an offence mentioned in subsection (1) alleged to be committed by the driver of a heavy vehicle, it is a defence for the driver to prove that the driver— (a) did not cause the deficiency and had no responsibility for or control over the maintenance of the vehicle or its equipment at any relevant time; and (b) did not know and could not reasonably be expected to have known of the deficiency; and (c) could not reasonably be expected to have sought to ascertain whether there was or was likely to be a deficiency of the kind to which the offence relates. 629—Defence of compliance with direction In a proceeding for an offence against this Law, it is a defence for the person charged to prove that the conduct constituting the offence was done in compliance with a direction given— (a) by an authorised officer; or (b) by the Regulator (including a delegate of the Regulator); or (c) by a person under a law of a State or Territory. 630—Sudden or extraordinary emergency (1) In a proceeding for an offence against this Law, it is a defence for the person charged to prove that the conduct constituting the offence occurred in response to circumstances of sudden or extraordinary emergency. (2) This section applies if and only if the person carrying out the conduct reasonably believed that— (a) circumstances of sudden or extraordinary emergency existed; and (b) the conduct was the only reasonable way to deal with the emergency; and (c) the conduct was a reasonable response to the emergency. 631—Lawful authority In a proceeding for an offence against this Law, it is a defence for the person charged to prove that the conduct constituting the offence is authorised or excused by or under a law. Division 4—Other provisions about liability 632—Deciding whether person ought reasonably to have known something (1) This section applies in relation to a proceeding for an offence against this Law if it is relevant to prove that someone ought reasonably to have known something. (2) A court may consider the following when deciding whether the person ought reasonably to have known the thing: (a) the person's abilities, experience, expertise, knowledge, qualifications and training; (b) the circumstances of the offence; (c) any other relevant matter prescribed by the national regulations for the purposes of this section. 632A—Using code of practice in proceeding (1) This section applies in a proceeding for an offence against this Law. (2) A registered industry code of practice is admissible as evidence of whether or not a duty or obligation under this Law has been complied with. (3) The court may— (a) have regard to the code as evidence of what is known about a hazard or risk, risk assessment, or risk control, to which the code relates; and (b) rely on the code in determining what is reasonably practicable in the circumstances to which the code relates. (4) Nothing in this section prevents a person from introducing evidence of complying with this Law in a way that differs from the code but that provides a standard of safety or protection equivalent to or higher than the standard required in the code. (5) However, the person may introduce the evidence mentioned in subsection (4) only if the person has given written notice of the person's intention to do so to the complainant at least 28 days before the day fixed for the hearing of the offence. 633—Multiple offenders (1) This section applies if a provision of this Law provides that, for a particular act or omission or set of circumstances, each of 2 or more persons is liable for an offence against a provision of this Law. (2) Proceedings may be taken against all or any of the persons in relation to the act, omission or circumstances. (3) Proceedings may be taken against any of the persons in relation to the act, omission or circumstances— (a) regardless of whether or not proceedings have been started against any of the other persons in relation to the act, omission or circumstances; and (b) regardless of whether or not any proceedings taken against any of the other persons in relation to the act, omission or circumstances have ended; and (c) regardless of the outcome of any proceedings taken against any of the other persons in relation to the act, omission or circumstances. (4) This section is subject to section 634(1). 634—Multiple offences (1) A person may be punished only once in relation to the same contravention of this Law by the person or a heavy vehicle, even if the person is liable in more than 1 capacity. (2) A person who has been punished for an act or omission or circumstances constituting an offence against this Law as it applies in another participating jurisdiction cannot be punished for an offence against this Law as it applies in this jurisdiction arising from the same act or omission or circumstances. (3) Despite any Act or other law (including subsections (1) and (2))— (a) a person may be punished for more than 1 contravention of a requirement of this Law if the contraventions relate to different parts of the same vehicle; and (b) a person may be punished for 1 or more contraventions of a requirement of this Law as it applies in another participating jurisdiction (interstate contraventions), and 1 or more contraventions of a requirement of this Law as it applies in this jurisdiction (local contraventions), if the interstate contraventions and local contraventions relate to different parts of the same vehicle; and (c) 2 or more contraventions of a provision by a person that arise from the same factual circumstances may be charged as— (i) a single offence; or (ii) separate offences. (4) Subsection (3)(c) does not authorise contraventions of 2 or more provisions to be charged as a single offence. (5) A single penalty only may be imposed in relation to 2 or more contraventions of a provision that are charged as a single offence. 635—Responsibility for acts or omissions of representative (1) This section applies in a proceeding for an offence against this Law. (2) If it is relevant to prove a person's state of mind about a particular act or omission, it is enough to show— (a) the act was done or omitted to be done by a representative of the person within the scope of the representative's actual or apparent authority; and (b) the representative had the state of mind. (3) An act done or omitted to be done for a person by a representative of the person within the scope of the representative's actual or apparent authority is taken to have been done or omitted to be done also by the person, unless the person proves the person could not, by the exercise of reasonable diligence, have prevented the act or omission. representative means— (a) for an individual—an employee or agent of the individual; or (b) for a corporation—an executive officer, employee or agent of the corporation or authority; state of mind, of a person, includes— (a) the person's knowledge, intention, opinion, belief or purpose; and (b) the person's reasons for the intention, opinion, belief or purpose. 636—Liability of executive officers of corporation (1) If a corporation commits an offence against a provision of this Law specified in column 2 of Schedule 4, each executive officer of the corporation who knowingly authorised or permitted the conduct constituting the offence also commits an offence against the provision. See also section 26D for the duty of an executive officer of a corporation to exercise due diligence to ensure the corporation complies with its safety duties under this Law. (4) An executive officer of a corporation may be proceeded against and convicted for an offence against the provision whether or not the corporation has been proceeded against or convicted under that provision. (5) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation under the provision. (6) Nothing in this section affects the application of any other law relating to the criminal liability of any persons (whether or not executive officers of the corporation) who are accessories to the commission of an offence or are otherwise involved in the contravention giving rise to an offence. (7) This section does not apply to an executive officer acting on a voluntary basis, whether or not the officer is reimbursed for the expenses incurred by the officer for carrying out activities for the corporation. 637—Treatment of unincorporated partnerships (1) This Law (other than section 636) applies to an unincorporated partnership as if it were a corporation, but with the changes set out in this section. (2) An obligation or liability that would otherwise be imposed on the partnership by this Law is imposed on each partner instead, but may be discharged by any of the partners. (3) An amount that would be payable under this Law by the partnership is jointly and severally payable by the partners. (4) An offence against a provision of this Law specified in column 2 of Schedule 4 that would otherwise be committed by the partnership is taken to have been committed by each partner who knowingly authorised or permitted the conduct constituting the offence. (7) Nothing in this section affects the application of any other law relating to the criminal liability of any persons (whether or not partners in the partnership) who are accessories to the commission of an offence or are otherwise involved in the contravention giving rise to an offence. (8) Subsection (4) does not apply to a partner acting on a voluntary basis, whether or not the partner is reimbursed for the expenses incurred by the partner for carrying out activities for the partnership. (9) For the purposes of this section, a change in the composition of the partnership does not affect the continuity of the partnership. 638—Treatment of other unincorporated bodies (1) This Law (other than section 636) applies to an unincorporated body as if it were a corporation, but with the changes set out in this section. (2) An obligation or liability that would otherwise be imposed on the unincorporated body by this Law is imposed on each management member of the body instead, but may be discharged by any of the management members. (3) An amount that would be payable under this Law by the unincorporated body is jointly and severally payable by the management members of the body. (4) An offence against a provision of this Law specified in column 2 of Schedule 4 that would otherwise be committed by the unincorporated body is taken to have been committed by each management member of the body who knowingly authorised or permitted the conduct constituting the offence. (7) Nothing in this section affects the application of any other law relating to the criminal liability of any persons (whether or not management members of the unincorporated body) who are accessories to the commission of an offence or are otherwise involved in the contravention giving rise to an offence. (8) Subsection (4) does not apply to a management member of the unincorporated body acting on a voluntary basis, whether or not the member is reimbursed for the expenses incurred by the member for carrying out activities for the body. (9) For the purposes of this section, a change in the composition of the unincorporated body does not affect the continuity of the body. 639—Liability of registered operator (1) This section applies to an offence against this Law that may be committed by the operator of a heavy vehicle (whether or not any other person can also commit the offence). (2) If an offence to which this section applies is committed, the following person is taken to be the operator of the heavy vehicle and, in that capacity, is taken to have committed the offence: (a) for a heavy vehicle that is not a combination—the registered operator of the vehicle; (b) for a heavy combination or the towing vehicle in a heavy combination—the registered operator of the towing vehicle in the combination; (c) for a trailer forming part of a heavy combination—the registered operator of the towing vehicle in the combination and the registered operator (if any) of the trailer. (3) The registered operator has the same excuses and defences available to the operator of the heavy vehicle under this Law or another law. (4) Subsection (2) does not apply if the registered operator gives the Regulator an operator declaration— (a) if an infringement notice for the offence is issued to the registered operator—within 14 days after the infringement notice is issued; or (b) if the registered operator is charged with the offence— (i) if the charge is to be heard 28 days or less after the charge comes to the operator's knowledge—as soon as practicable after the charge comes to the registered operator's knowledge; or (ii) if the charge is to be heard more than 28 days after the charge comes to the operator's knowledge—as soon as practicable after the charge comes to the registered operator's knowledge but at least 28 days before the charge is heard. (5) If the registered operator gives an operator declaration as mentioned in subsection (4)— (a) a proceeding for the offence may be started against the person named as the operator of the heavy vehicle in the operator declaration only if a copy of the operator declaration has been served on the person; and (b) in a proceeding for the offence against the person named as the operator of the heavy vehicle in the operator declaration, the operator declaration is evidence that the person was the operator of the heavy vehicle at the time of the offence; and (c) in a proceeding for the offence against the registered operator, a court must not find the registered operator guilty of the offence in the registered operator's capacity as the operator of the heavy vehicle if it is satisfied, whether on the statements in the operator declaration or otherwise, the registered operator was not the operator of the heavy vehicle at the time of the offence. (6) To remove any doubt, it is declared that this section does not affect the liability of the registered operator in a capacity other than as the operator of the heavy vehicle. operator declaration means a statutory declaration, made by the registered operator of a vehicle that is or forms part of a heavy vehicle the subject of an offence against this Law, stating— (a) the registered operator was not the operator of the heavy vehicle at the time of the offence; and (b) the name and address of the operator of the heavy vehicle at the time of the offence; registered operator, of a vehicle other than a heavy vehicle, means the registered or licensed operator of the vehicle under an Australian road law.