Div 5BInjunctions

Division 5B—Injunctions 576D—Application of Division 5B notice means an improvement notice or a prohibition notice. 576E—Injunction for noncompliance with notice (1) An authorised officer may apply to the Supreme Court for an injunction— (a) compelling a person to comply with a notice; or (b) restraining a person from contravening a notice. (2) The authorised officer may do so— (a) whether or not a proceeding has been brought for an offence against this Law in connection with any matter in relation to which the notice was issued; and (b) whether any period for compliance with the notice has expired. (3) An authorised officer may make an application under this section only if— (a) for an authorised officer who is a police officer—the officer has the relevant police commissioner's written authority to make the application; or (b) for an authorised officer who is not a police officer—the officer's instrument of appointment provides that the authorised officer may make the application. Division 6—Power to require reasonable help 577—Power to require reasonable help (1) An authorised officer who enters a place under this Chapter may require an occupier of the place or a person at the place to give the officer reasonable help to exercise a power under this Chapter. (2) An authorised officer who is exercising a power under this Chapter in relation to a heavy vehicle on a road may require the vehicle's driver to give the officer reasonable help to exercise the power. (3) Without limiting subsection (1) or (2), a requirement under the subsection may be that the occupier, person or driver— (a) produce a document or give information to the authorised officer; or The authorised officer wishes to obtain information relating to the purpose of the entry. Information of that type is stored or recorded on a computer at the place. The authorised officer may require the occupier to give reasonable help to produce a reproduction of the information from the computer. Section 17 of Schedule 1 and section 490 deal with the production of documents and other information kept electronically. (b) help the authorised officer to find and gain access to a document or information, including electronically stored information; or Examples of documents or information— • a document about the heavy vehicle's performance, specifications (including the dimensions and other physical attributes of the vehicle or its fittings), functional capabilities (including the vehicle's GVM, GCM and speed capabilities) or authorised operations required to be kept in the vehicle under this Law or a heavy vehicle accreditation • a weighing document for a container loaded on to the heavy vehicle • a telephone record (c) help the authorised officer to weigh or measure— (i) a heavy vehicle or a component of a heavy vehicle; or (ii) the whole or part of a heavy vehicle's load or equipment; or (d) start or stop the engine of a heavy vehicle under section 523; or (e) help the authorised officer to operate equipment or facilities for a purpose relevant to the power being or proposed to be exercised; or (f) provide access free of charge to photocopying equipment for the purpose of copying any records or other material. (4) A person of whom a requirement is made under subsection (1) or (2) must comply with the requirement, unless the person has a reasonable excuse. (5) Without limiting what may be a reasonable excuse for the purposes of subsection (4), it is a reasonable excuse for a person not to comply with a requirement made under subsection (1) or (2) if doing so would require the person to take action that is outside the scope of the business or other activities of the person. (6) It is not a reasonable excuse for a person to fail to comply with a requirement made under subsection (1) or (2), in relation to a document or information that is the subject of the requirement, if doing so might tend to incriminate the person or make the person liable to a penalty. 1 Section 587 also deals with self‑incrimination when complying with a requirement of an authorised officer. 2 Section 588 deals with the admissibility of information provided in complying with a requirement under this section. (7) If a requirement made under subsection (1) or (2) is that the occupier of, or person at, a place start or stop the engine of a heavy vehicle— (a) it is immaterial that the occupier or person is not— (i) the operator of the vehicle; or (ii) authorised by the operator to drive the vehicle or start or stop its engine; or (iii) qualified to drive the vehicle or start or stop its engine; and (b) in starting or stopping the engine of the vehicle in compliance with the requirement, the occupier or person is exempt from a provision of an Australian road law to the extent the provision would require the occupier or person to be qualified to start or stop the engine. Part 5—Provisions about exercise of powers Division 1—Damage in exercising powers 578—Duty to minimise inconvenience or damage (1) In exercising a power under this Law, an authorised officer must exercise reasonable diligence to cause as little inconvenience, and do as little damage, as possible. (2) Subsection (1) does not provide for a statutory right of compensation other than as provided under Division 2. Division 2 provides for compensation for costs, damage or loss incurred because of the exercise of a power by an authorised officer under this Chapter. 579—Restoring damaged thing (a) an authorised officer damages something when exercising, or purporting to exercise, a power under this Law and the damage was caused by an improper or unreasonable exercise of the power or the use of unauthorised force; or (b) a person (the assistant) acting under the direction or authority of an authorised officer damages something and the damage was caused by an improper or unreasonable exercise of a power or the use of unauthorised force. (2) The authorised officer must exercise reasonable diligence to restore the thing to the condition it was in immediately before the officer exercised the power, or the assistant took action under the officer's direction or authority. 580—Notice of damage (a) an authorised officer damages something when exercising, or purporting to exercise, a power under this Law; or (b) a person (the assistant) acting under the direction or authority of an authorised officer damages something. (2) However, this section does not apply to damage if the authorised officer reasonably believes— (a) the thing has been restored to the condition it was in immediately before the officer exercised the power, or the assistant took action under the officer's direction or authority; or (b) the damage is trivial; or (c) there is no‑one apparently in possession of the thing; or (d) the thing has been abandoned; or (e) the damage was not caused by an improper or unreasonable exercise of a power or the use of unauthorised force. (3) The authorised officer must give notice of the damage to the person who appears to the officer to be an owner, or person in control, of the thing. (4) However, if for any reason it is not practicable to comply with subsection (3), the authorised officer must— (a) leave the notice at the place where the damage happened; and (b) ensure it is left in a conspicuous position and in a reasonably secure way. (5) The notice must state— (a) particulars of the damage; and (b) that the person who suffered the damage may claim compensation under section 581. (6) If the authorised officer believes the damage was caused by a latent defect in the thing or circumstances beyond the control of the officer or the assistant the officer may state the belief in the notice. (7) The authorised officer may delay complying with subsection (3) or (4) if the officer reasonably suspects complying with the subsection may frustrate or otherwise hinder an investigation by the officer under this Law. (8) The delay may be only for so long as the authorised officer continues to have the reasonable suspicion and remains in the vicinity of the place. Division 2—Compensation 581—Compensation because of exercise of powers (1) A person may claim compensation from the Regulator if the person incurs costs, damage or loss because of the exercise, or purported exercise, of a power by or for an authorised officer, including costs, damage or loss incurred because of compliance with a requirement made of the person under this Chapter. (2) However, subsection (1) does not apply— (a) to costs, damage or loss incurred because of a lawful seizure or forfeiture; or (b) if the costs, damage or loss was not caused by an improper or unreasonable exercise of a power or the use of unauthorised force. (3) The compensation may be claimed and ordered in a proceeding— (a) brought in a court with jurisdiction for the recovery of the amount of compensation claimed; or (b) for an offence against this Law in relation to which the power was exercised or purportedly exercised. (4) A court may order the payment of compensation only if it is satisfied it is just to make the order in the circumstances of the particular case. (5) In considering whether it is just to order compensation, the court must have regard to any relevant offence committed by the claimant. (6) The national regulations may prescribe other matters that may, or must, be taken into account by the court when considering whether it is just to order compensation. Division 3—Provision about exercise of particular powers 582—Duty to record particular information in driver's work diary (1) This section applies if, under this Law, an authorised officer directs the driver of a fatigue‑regulated heavy vehicle to stop the vehicle for compliance purposes. (2) If, for the exercise or purported exercise of a power under this Law, the authorised officer detains the driver for 5 minutes or longer, the driver may ask the officer to record the following details in the driver's work diary: (a) the officer's identifying details; (b) the time, date and place at which the driver stopped the heavy vehicle in compliance with the officer's direction; (c) the length of time the driver spent talking to the officer in the exercise or purported exercise of a power under this Law. (3) The authorised officer must comply with the request. (4) An authorised officer complies with subsection (2)(a) by recording either his or her name, or his or her identification number. Part 6—Miscellaneous provisions Division 1—Powers of Regulator 583—Regulator may exercise powers of authorised officers (1) The Regulator may exercise a power that is conferred on authorised officers under this Law, and accordingly, the functions of the Regulator include the powers exercisable by the Regulator under this subsection. (2) Subsection (1) does not apply to a power that requires the physical presence of an authorised officer. Division 2—Other offences relating to authorised officers 584—Obstructing authorised officer (1) A person must not obstruct— (a) an authorised officer, or someone helping an authorised officer, exercising a power under this Law; or (b) an assistant mentioned in section 518, 519 or 523 exercising a power under that section. obstruct includes assault, hinder, resist, attempt to obstruct and threaten to obstruct. 585—Impersonating authorised officer A person must not impersonate an authorised officer. Division 3—Other provisions 586—Multiple requirements An authorised officer may— (a) on the same occasion— (i) give more than 1 direction or notice to, or make more than 1 requirement of, a person under a provision of this Chapter; or (ii) give a direction or notice to, or make a requirement of, a person under a provision of this Chapter and give a direction or notice to, or make a requirement of, the person under 1 or more other provisions of this Chapter; or (b) give a direction or notice to, or make a requirement of, a person under a provision and give a further direction or notice to, or make a further requirement of, the person under the same provision; or (ba) give a notice to a person in relation to a heavy vehicle under a provision of this Chapter and give a notice to a person in relation to the same heavy vehicle under the same provision or 1 or more other provisions of this Chapter; or (c) make a combination of directions, notices or requirements under paragraph (a)(i) or (ii), (b) or (ba). 587—Compliance with particular requirements (1) A person is not excused from compliance with a requirement imposed by an authorised officer under this Chapter on the ground that compliance might incriminate the person or make the person liable to a penalty. (2) Subsection (1) has effect subject to section 588. 588—Evidential immunity for individuals complying with particular requirements (1) This section applies to a requirement made by an authorised officer under section 569(1)(c) to (f), 570(1)(a) and (b) or 577. (2) The following is not admissible in evidence against an individual in a criminal proceeding (except a proceeding for an offence against this Chapter): (a) information, other than information in the form of a document, that the individual gives in complying with the requirement; (b) information that is directly or indirectly derived from information to which paragraph (a) applies. (3) Any document produced by an individual in compliance with the requirement is not inadmissible in evidence against the individual in a criminal proceeding on the ground that the document might incriminate the individual. (4) Subsection (2) does not apply to a proceeding about the false or misleading nature of anything in the information or in which the false or misleading nature of the information is relevant evidence. 589—Effect of withdrawal of consent to enter under this Chapter (a) an authorised officer enters a place with the occupier's consent and has obtained evidence at the place; but (b) the occupier's consent is later withdrawn. (2) The evidence obtained (including any evidence seized) up to the time the consent is withdrawn is not invalid or inadmissible in proceedings for a contravention of this Law merely because the consent was withdrawn. Chapter 10—Sanctions and provisions about liability for offences Part 1—Formal warnings 590—Formal warning (a) a person has contravened this Law; and (b) the person had exercised reasonable diligence to prevent the contravention and was unaware of the contravention; and (c) the contravention may appropriately be dealt with by way of a warning under this section. (2) The authorised officer may give the person a written warning. (3) However, a warning must not be given for— (a) a contravention of a mass, dimension or loading requirement constituting a substantial risk breach or severe risk breach; or (b) a contravention of a maximum work requirement or a minimum rest requirement constituting a substantial risk breach, severe risk breach or a critical risk breach. (4) Subject to subsection (6), if a warning is given to a person under this section for a contravention of this Law, the person cannot be proceeded against for an offence against this Law constituted by the contravention. (5) A warning given under this section may, within 21 days after it is given, be withdrawn by an approved authorised officer by giving the person to whom the warning was given notice of the withdrawal. (6) After a warning given under this section is withdrawn under subsection (5), a proceeding may be taken against the person to whom the warning was given for the contravention for which the warning was given. approved authorised officer means— (a) for a warning given under this section by an authorised officer who is a police officer—an authorised officer who is a police officer and who has the relevant police commissioner's written authority to withdraw warnings given under this section; or (b) for a warning given under this section by an authorised officer who is not a police officer—an authorised officer whose instrument of appointment provides that the authorised officer may withdraw warnings given under this section; proceeding includes action by way of an infringement notice. Part 1A—Enforceable undertakings 590A—Accepting undertaking (1) This section applies if a person contravenes or is alleged to have contravened this Law, other than section 26F. (2) The Regulator or an authorised officer (the promisee) may accept an undertaking made by the person in relation to the contravention or alleged contravention. (3) The undertaking must be in the approved form. (4) The promisee may accept the undertaking only if the promisee reasonably believes the undertaking will ensure the person complies with this Law. (5) The promisee may accept the undertaking at any time before the proceeding for the contravention, or alleged contravention, ends. (6) If the promisee accepts an undertaking before the proceeding ends, the promisee must use reasonable diligence to have the proceeding discontinued as soon as possible. (7) The promisee must give the person written notice of— (a) the promisee's decision to accept or reject the undertaking; and (8) If the promisee decides to accept the undertaking and the promisee is not the Regulator, the promisee must give the following documents to the Regulator within 28 days after accepting the undertaking: (a) a copy of the undertaking; (b) a statement of the reasons for the promisee's decision to accept the undertaking. (9) The Regulator must publish the following information on the Regulator's website: (a) a promisee's decision to accept an undertaking under this section; (10) An authorised officer may act under this section only if— (a) for an authorised officer who is a police officer—the officer has the relevant police commissioner's written authority to act under this section; or (b) for an authorised officer who is not a police officer—the officer's instrument of appointment provides that the authorised officer may act under this section. 590B—Effect of undertaking (1) An undertaking takes effect— (a) when the promisee gives notice of the decision to accept the undertaking to the person who made the undertaking; or (b) at a later time stated in the notice. (2) While the undertaking is in effect, the person must comply with the undertaking. (3) If the person complies with the undertaking, no proceeding for the contravention or alleged contravention may be taken against the person. (4) The offer to make, or the making of, an undertaking is not an admission of guilt by the person offering to make, or making, the undertaking. 590C—Withdrawing or changing undertaking (1) The person who made an undertaking may, at any time, with the written agreement of the promisee— (a) withdraw the undertaking; or (b) change the undertaking. (2) However, the provisions of the undertaking may not be changed to provide for a different contravention or alleged contravention of this Law. (3) If the promisee is not the Regulator, the promisee must give notice of the withdrawal or change of the undertaking to the Regulator. (4) The Regulator must publish notice of the withdrawal or change on the Regulator's website. 590D—Contravening undertaking (1) The promisee may apply to a relevant tribunal or court for an order if the person who made an undertaking fails to comply with the undertaking. (2) If the relevant tribunal or court is satisfied the person has failed to comply with the undertaking, the relevant tribunal or court, as well as imposing any penalty, may make— (a) an order directing the person to comply with the undertaking; or (b) an order discharging the undertaking. (3) Also, the relevant tribunal or court may make any other order that the tribunal or court considers appropriate in the circumstances, including an order directing the person to pay to the State— (a) the costs of the proceeding; and (b) the reasonable costs of the promisee in monitoring whether the person complies with the undertaking in the future. (4) Nothing in this section prevents a proceeding being taken for the contravention or alleged contravention to which the undertaking relates. Part 2—Infringement notices 591—Infringement notices (1) An authorised officer who reasonably believes that a person has committed a prescribed offence against this Law may serve the person with an infringement notice issued as an alternative to prosecution in court for the offence. (2) The procedures to be followed in connection with infringement notices issued for the purposes of this Law as applied in this jurisdiction are to be the procedures prescribed by or under the Infringement Notice Offences Law of this jurisdiction. prescribed offence means an offence prescribed by a law of this jurisdiction for the purposes of this section. 592—Recording information about infringement penalties (1) The Regulator may keep a record of— (a) each infringement notice issued for the purposes of this Law; and (b) the payment of a fine sought by an infringement notice by a person to whom the notice is issued for the purposes of this Law. (2) Information in a record kept under subsection (1) may be used only— (a) to accumulate aggregate data for research or education; or (b) in a proceeding relating to the offence for which the infringement notice was issued, including, for example, an appeal against the conviction for the offence; or (d) for the purposes of section 601(b) or 608(b); or (e) as authorised under subsection (3). (3) Information in a record kept under subsection (1)(a) may be used by authorised officers in connection with the exercise of functions under this Law. Part 3—Court sanctions Division 1—General provisions 593—Penalties court may impose (1) A court that finds a person guilty of an offence against this Law may impose any 1 or more of the penalties provided for in this Part. (2) Without limiting the court's discretion, when imposing 2 or more penalties under this Part, the court must take into account the combined effect of the penalties imposed. (3) This Part does not limit the powers or discretion of the court under another law. 594—Matters court must consider when imposing sanction for noncompliance with mass, dimension or loading requirement (1) The purpose of this section is to bring to a court's attention the implications and consequences of a contravention of a mass, dimension or loading requirement when deciding the kind and level of sanction to be imposed for the contravention. (2) In deciding the sanction, including the level of a fine, to be imposed for the contravention, the court must consider the following matters: (a) a minor risk breach of a mass, dimension or loading requirement involves either or both of the following: (i) an appreciable risk of accelerated road wear; (ii) an appreciable risk of unfair commercial advantage; (b) a substantial risk breach of a mass, dimension or loading requirement involves 1 or more of the following: (i) a substantial risk of accelerated road wear; (ii) an appreciable risk of damage to road infrastructure; (iii) an appreciable risk of increased traffic congestion; (iv) an appreciable risk of diminished public amenity; (v) a substantial risk of unfair commercial advantage; (c) a severe risk breach of a mass, dimension or loading requirement involves 1 or more of the following: (i) an appreciable risk of harm to public safety or the environment; (ii) a serious risk of accelerated road wear; (iii) a serious risk of damage to road infrastructure; (iv) a serious risk of increased traffic congestion; (v) a serious risk of diminished public amenity; (vi) a serious risk of unfair commercial advantage. (3) This section does not limit the matters the court may consider in deciding the sanction for the contravention. (4) Nothing in this section authorises or requires the court to assign the contravention to a different risk category. (5) Nothing in this section requires evidence to be adduced about a matter mentioned in subsection (2). 595—Court may treat noncompliance with mass, dimension or loading requirement as a different risk category (1) If a court is satisfied there has been a contravention of a mass, dimension or loading requirement but is not satisfied the contravention is a substantial risk breach or a severe risk breach, the court may treat the contravention as a minor risk breach. (2) If a court is satisfied there has been a contravention of a mass, dimension or loading requirement and that the contravention is at least a substantial risk breach but is not satisfied the contravention is a severe risk breach, the court may treat the contravention as a substantial risk breach. Division 2—Provisions about imposing fines 596—Body corporate fines under penalty provision (1) This section applies to a provision of this Law that— (a) prescribes a maximum fine for an offence; and (b) does not expressly prescribe a maximum fine for a body corporate different to the maximum fine for an individual. (2) The maximum fine is taken only to be the maximum fine for an individual. (3) If a body corporate is found guilty of the offence, the court may impose a maximum fine of an amount equal to 5 times the maximum fine for an individual.