Zero and Low Emission Vehicle Distance-based Charge Act 2021

The Act defines several key terms. ZLEV (zero and low emission vehicle) means an electric vehicle, a hydrogen vehicle, or a plug-in hybrid electric vehicle, but does not include an excluded vehicle (s 3 definition of ZLEV). Electric vehicle is a motor vehicle that uses one or more electric motors for propulsion, fuelled from an off-vehicle electrical power source, a battery or an electric generator, and is not fitted with an internal combustion engine that provides propulsion or a fuel source for an electric propulsion system (s 3). Hydrogen vehicle means a motor vehicle that uses one or more electric motors for propulsion, fuelled from a hydrogen fuel cell, and is not fitted with an internal combustion engine providing propulsion or a fuel source for an electric propulsion system (s 3). Plug-in hybrid electric vehicle means a motor vehicle that uses one or more electric motors for propulsion, fuelled from an off-vehicle electrical power source, a battery, a fuel cell or an electric generator, and is fitted with an internal combustion engine that provides propulsion or a fuel source for an electric propulsion system (s 3). Excluded vehicles are mobile plant, motor cycles (within the meaning of the Road Safety Act 1986), heavy vehicles (as defined in the Heavy Vehicle National Law (Victoria)), and any motor vehicle or class determined as excluded by the Minister (s 3 definition of excluded vehicle; s 4). Mobile plant is defined as a motor vehicle that is not a heavy vehicle, not designed solely for carrying passengers, where carrying a load is incidental to its purpose (except water for concrete pumps and fire trucks), and is not a tow truck under the Accident Towing Services Act 2007 (s 3). A specified road includes public roads under the Road Management Act 2004, road related areas under the Road Safety Act 1986, highways at common law in or outside Victoria, and any other prescribed road (s 3 definition). The registered operator is the person who is or was the registered operator (under the Road Safety Act 1986) of a ZLEV when it is or was used on a specified road (s 3). The Secretary means the Secretary to the Department of Transport (s 3). Declaration refers to an initial declaration under section 10 or a subsequent declaration under section 11. An invoice includes an original invoice under section 18 or a revised invoice under section 20. ZLEV charge is the charge imposed by section 7. The Act also defines authorised officer, notice of suspension, notice of cancellation, objection, objector, additional information notice, and various other terms in section 3. The current registration period of a ZLEV is defined as the current period for which the ZLEV is registered under the Road Safety Act.

The Act primarily affects registered operators of ZLEVs in Victoria. A registered operator is the person recorded as the registered operator under the Road Safety Act 1986 for a ZLEV when it is used on a specified road (s 3). This includes individuals and companies that own or lease ZLEVs registered in Victoria. The Act applies to any ZLEV that is not an excluded vehicle, meaning electric vehicles, hydrogen vehicles, and plug-in hybrid electric vehicles that are not mobile plant, motor cycles, heavy vehicles, or otherwise excluded by Ministerial determination (ss 3, 4). The Act binds the Crown in right of Victoria and, so far as the Parliament’s legislative power permits, the Crown in all other capacities (s 5). It has extraterritorial operation, applying to use of ZLEVs outside Victoria (s 6). Therefore, a registered operator using a Victorian-registered ZLEV interstate must still account for that use. The Secretary to the Department of Transport is the principal administrator, determining the charge, issuing invoices, suspending and cancelling registration, considering objections, and waiving amounts. The Secretary may delegate powers and appoint authorised officers under section 59, who may require and conduct inspections of ZLEVs (ss 60, 61). Employees of the Department and other persons engaged to provide services for the Secretary are affected as relevant persons for information-handling obligations (s 65). Law enforcement agencies may receive relevant information for enforcement purposes under section 66(1)(e), subject to an information protection agreement (s 67). VCAT may review decisions on objections (s 54). The State is the beneficiary of the debt owed under section 58, and the Consolidated Fund is appropriated for payments by the Secretary (s 77). Courts of competent jurisdiction may recover unpaid ZLEV charge and interest (s 58(2)). Bodies corporate face higher penalties for certain offences (e.g., 25 penalty units for failure to keep records under s 62, compared to 5 for individuals; 300 penalty units for giving false or misleading information under s 64, compared to 60 for individuals). Individuals who are registered operators must comply with declaration, payment, inspection, and record-keeping obligations. Objectors (registered operators who lodge objections) are affected by the onus of proof placed on them (s 49). Authorised representatives of individuals, including guardians, attorneys, and medical treatment decision-makers, may consent to disclosure of information under Part 6 (s 65 definition of authorised representative). Other Australian jurisdictions and their ministers and bodies may enter intergovernmental agreements and receive information under Part 6 (s 65). The Act also affects any person who obtains relevant information, as they are subject to strict use and disclosure restrictions (s 70(3), (4)).

The Act imposes several duties on registered operators of ZLEVs. Duty to lodge an initial declaration: Within 14 days after 1 July 2021 (if the ZLEV was registered on that day) or the later day the ZLEV is first registered or re-registered, the registered operator must lodge an initial declaration with the Secretary in the approved form, setting out the odometer reading as at that time, including evidence of that reading, and any other information required (s 10). Duty to lodge subsequent declarations: The registered operator must lodge a declaration on or before the earliest of: a day specified in a notice from the Secretary under section 12; 14 days after the last day of the current registration period; or the day the vehicle’s registration is transferred or cancelled (s 11(1)). The declaration must include the odometer reading or total distance travelled since the last declaration, the distance not travelled on specified roads, evidence of those matters, and any other required information (s 11(3)). Duty to pay invoices: The registered operator must pay an invoice by the date for payment stated in the invoice, using a means approved by the Secretary (s 19). Duty to present ZLEV for inspection: On receiving a written notice under section 60(1) or (3), the registered operator must present the ZLEV for inspection at the specified time and place for taking odometer readings and verifying identity. Failure without reasonable excuse attracts a penalty of 5 penalty units (individual) or 25 penalty units (body corporate) (s 60(4)). Duty to keep records and evidence: The registered operator must keep all records and evidence necessary to enable the ZLEV charge to be properly determined (s 62(1)), and retain them for at least 5 years (s 63(1)). Non-compliance without reasonable excuse is an offence (ss 62, 63). Duty not to give false or misleading information: A person must not include false or misleading information in any record, evidence, declaration, or other document under the Act, knowing it is false or misleading or reckless as to that (s 64). This duty is not subject to a reasonable excuse defence. Duty to return number plates: If registration is cancelled under section 35, the registered operator must, if required, return the number plates to the Secretary or agent within 14 days after cancellation (s 37). Penalty: 3 penalty units. Duty to comply with additional information notices: If the Secretary requests further information to consider an objection, the objector must provide it by the specified date (at least 30 days after the notice) or the objection lapses (ss 45, 46).

The Act also confers rights on the registered operator. Right to object to an invoice: The registered operator may lodge an objection to an invoice within 60 days after the invoice is issued, on grounds that the distance travelled is wrong, the charge is incorrectly calculated, the interest is incorrectly applied, or the ZLEV is not subject to the charge (ss 40, 42). Right to object to suspension or cancellation: A registered operator may object to a suspension decision within 28 days of the notice, or to a cancellation decision within 28 days of the cancellation notice (ss 43, 44). Right to request change of inspection time or place: The operator may request the Secretary to change the time or place of an inspection under section 60, and the Secretary must consider the request and, if reasonable, change it (s 60(2), (3)). Right to apply to VCAT for review: If dissatisfied with the Secretary’s decision on an objection, or if 90 days pass without a decision (not counting suspension periods), the operator may apply to VCAT for review (s 54). The application must be made within 60 days after notice of the decision (s 54(3)). Right to have suspension lifted: The Secretary must lift a suspension when the operator takes the required action (lodging declaration, paying invoice, presenting for inspection) (s 32). The Secretary may also lift or revoke suspension or reinstate cancelled registration for any reason (ss 33, 34, 38, 39). Right to refund of overpayments: If the operator overpays, the Secretary must refund the difference (s 28). Right to request waiver of charge: The Secretary may waive charge in prescribed circumstances or any other appropriate circumstances (s 27). Right to request remission of interest: The Secretary may remit interest in any appropriate circumstances (s 26). Protection from service of documents: The Act provides various methods of service, but if a document is returned undelivered, the operator may demonstrate they could not reasonably have received it, and the Secretary must treat it as not served (s 71(5)).

The Act establishes several enforcement mechanisms, including criminal penalties, civil debt recovery, and administrative sanctions. Criminal penalties are imposed for specified offences. Section 64: a person who includes false or misleading information in a record, evidence, declaration, or other document under the Act, knowing it is false or reckless, faces 60 penalty units (individual) or 300 penalty units (body corporate). Section 60(4): failure without reasonable excuse to present a ZLEV for inspection as required is 5 penalty units (individual) or 25 penalty units (body corporate). Section 62(1): failure to keep records and evidence necessary to determine the charge is 5 penalty units (individual) or 25 penalty units (body corporate), subject to a reasonable excuse defence. Section 63(1): failure to retain records for 5 years is similarly penalised. Section 37: failure to return number plates after cancellation is 3 penalty units. Section 70: unauthorised use or disclosure of relevant information by the Secretary, a relevant person, or any person who obtains information under an information protection agreement or otherwise is 120 penalty units or imprisonment for 12 months. The regulations may also impose penalties of up to 20 penalty units for regulatory offences (s 78(2)(f)). Debt recovery: The ZLEV charge and any interest are debts due to the State and may be recovered by the Secretary in a court of competent jurisdiction (s 58). Interest under section 23 applies from the day after the due date until payment, calculated daily at the rate under the Penalty Interest Rates Act 1983. Interest under $10 is not payable (s 24). The interest rate set by this Division continues to apply even if judgment is entered, excluding any other judgment interest rate (s 25). The Secretary may remit interest in any appropriate circumstances (s 26). Administrative enforcement - suspension of registration: Under section 29, the Secretary may suspend a ZLEV’s registration if the operator has not lodged a declaration, paid an invoice, or presented the vehicle for inspection by the required day. The suspension takes effect after a specified period (at least 14 days) unless the operator takes the specified action. While suspended, the ZLEV is unregistered for the purposes of Part 2 of the Road Safety Act 1986 (s 31(1)), but it is not an offence to leave it on a highway or use it solely for inspection purposes (s 31(2)). Suspension does not alter the registration expiry date (s 31(3)). Administrative enforcement - cancellation of registration: If the suspension is not remedied within the period specified in the notice (at least 14 days after suspension takes effect, and after the objection period ends), the Secretary may cancel the registration (s 35). The operator must then return number plates if required (s 37). Objection and review: Objections to invoices (60 days) and to suspension/cancellation (28 days) are available, but the operator must pay the charge and suspension continues pending the decision (s 57). On objection, the objector has the onus of proof (s 49). If the Secretary does not decide within 90 days (excluding suspension periods), the objector may apply to VCAT for review (s 54). On review, the objector again has the onus (s 55). Inspections: Authorised officers may require inspection of ZLEVs for odometer reading and vehicle identity verification (s 60). Failure to comply is an offence. Record-keeping enforcement: The Secretary may rely on the absence of records to estimate the charge (s 17). False records attract high penalties.

The Act interacts with several Victorian and Commonwealth laws. Road Safety Act 1986: The Act relies on the Road Safety Act for the meaning of ‘motor vehicle’, ‘vehicle identifier’, ‘registered operator’, and ‘registered’ (s 3 definitions). Section 29(1) of this Act allows suspension “despite section 9(1) of the Road Safety Act 1986”, which would otherwise prohibit suspension. Similarly, section 35 allows cancellation despite section 9(1) of the Road Safety Act. Under section 31, suspension renders the ZLEV unregistered for the purposes of Part 2 of the Road Safety Act, meaning use on a road would be an offence under that Act (with a specific carve-out for leaving a suspended vehicle on a highway or using it solely for inspection). The Act also incorporates by reference section 90L of the Road Safety Act 1986 regarding exceptional circumstances disclosure (s 66(1)(c), (2)). Road Management Act 2004: ‘Specified road’ includes a public road under that Act (s 3). The Act also refers to a ‘road management function’ and ‘damage to infrastructure’ under that Act in the context of legal proceedings (s 66(1)(a)(iv)). Heavy Vehicle National Law (Victoria): ‘Heavy vehicle’ has the same meaning as in that law, used to define excluded vehicles (s 3). Motor Car Traders Act 1986: Notes to sections 10 and 11 warn that tampering with an odometer is an offence under section 38 of that Act. Penalty Interest Rates Act 1983: The interest rate on unpaid invoices is fixed under section 2 of that Act (s 23(2)). Public Holidays Act 1993: Defines ‘business day’ (s 3). Transport Integration Act 2010: ‘Transport legislation’ for the purposes of Part 6 has the same meaning as in section 3 of that Act (s 65). Public Administration Act 2004: Authorised officers may be persons employed under Part 3 of that Act (s 59). Freedom of Information Act 1982: Documents containing relevant information are exempt under section 38 of that Act (s 69). Infringements Act 2006: Service provisions refer to an ‘authorised address’ within the meaning of section 163A of that Act (s 71(4)). Guardianship and Administration Act 2019 and Medical Treatment Planning and Decisions Act 2016: Define aspects of ‘authorised representative’ for individuals (s 65). Accident Towing Services Act 2007: Excludes tow trucks from the definition of mobile plant (s 3). State’s Consolidated Fund: Appropriation of the Consolidated Fund for payments by the Secretary (s 77). Intergovernmental agreements: The Act authorises disclosure of relevant information to give effect to intergovernmental agreements between Victorian and interstate ministers or public sector bodies, and the Secretary may enter information protection agreements with bodies outside Victoria (ss 66, 67). VCAT Act (not specifically cited but implicit): The right of review under section 54 is to VCAT, which operates under its own governing legislation. The Act interacts with the VCAT Act regarding time limits, suspension periods, and giving effect to decisions.

The Act is Version No. 002, incorporating amendments as at 1 July 2022. The Act received Royal Assent on 1 June 2021 (No. 18 of 2021) and commenced on 1 July 2021 (s 2). The only amendment recorded in the Table of Amendments is the repeal of Part 8 (sections 79 to 81) by section 81 of the same Act, which was scheduled to occur on 1 July 2022. Section 81 repealed Part 8 (Heading and sections 79-81) on that date. No other amendments have been made. The Act does not appear to have been amended by any subsequent legislation as of the version date. The endnotes confirm that Part 1 (Preliminary), Part 2 (charge), Part 3 (suspension/cancellation), Part 4 (objections/reviews), Part 5 (enforcement), Part 6 (use/disclosure of information), Part 7 (general) remain as enacted. The regulations power in section 78 remains unexercised in this version (no regulations are consolidated). The Act’s indexation formula in section 9 applies from the 2022-23 financial year onward. The Minister must publish notice of the varied rate (or a determination not to vary) before the start of each financial year (s 9(6)). Failure to publish does not affect validity. The initial rates (2.5c/km for electric/hydrogen, 2.0c/km for plug-in hybrid) applied only for the 2021-22 year. The Act includes no transitional provisions beyond the initial declaration timing in section 10. The Act’s extraterritorial operation (s 6) means it applies to ZLEV use outside Victoria, which may raise interaction with interstate laws if other jurisdictions introduce similar charges.

The Act is relatively new (in force from 1 July 2021) and the version provided does not reference any litigation history. No cases are cited in the Act text or endnotes. The Act includes extensive provisions for objections (Part 4) and VCAT review (Division 5 of Part 4), but no reported decisions or case names are mentioned. Given the Act’s recent commencement, there may be limited case law. The Act’s objection provisions mirror typical tax and regulatory review mechanisms. The onus of proof on the objector (s 49) and on review (s 55) is significant and likely to be tested. The Secretary’s power to estimate the charge in the absence of a declaration (s 17) and the presumption of regularity in evidentiary provisions (ss 73-76) may also be litigated. The interest provision that overrides judgment debt interest (s 25) could be judicially considered. The suspension and cancellation provisions (Part 3) may generate disputes about procedural fairness, particularly the Secretary’s ability to suspend without a hearing and the requirement that the operator take action to avoid suspension (s 30). The Act’s extraterritorial operation (s 6) could be challenged if applied to use outside Victoria that is lawful in another jurisdiction. The information-sharing provisions of Part 6 may also be litigated in the context of privacy challenges. As at the version date, no entries appear in the Explanatory details endnote. A search of VCAT and Victorian court databases would be necessary to identify any actual decisions.

Practitioners and operators should note several potential traps in the Act. Short initial declaration window: The initial declaration must be lodged within 14 days after 1 July 2021 or the date of first registration or re-registration (s 10(1)). This is a tight deadline, and failure may lead to estimation of the charge by the Secretary under section 17(1). Self-reporting of non-specified-road distance: The declaration must include the distance not travelled on specified roads (s 11(3)(b)). The operator bears the burden of proving this deduction; otherwise the Secretary may assume all distances are on specified roads (s 15(3)). The operator must keep evidence of non-specified-road travel for 5 years (ss 62, 63). Onus of proof on objection and review: The objector has the onus of proving their case both before the Secretary (s 49) and on review in VCAT (s 55). This is unusual for tax-type disputes and places a heavy evidentiary burden on the operator. Suspension continues pending objection: Under section 57, lodging an objection does not affect the obligation to pay the charge or suspend registration. The suspension continues, and the invoice remains payable and recoverable. This means the operator must either pay first or risk ongoing suspension. Five-year revision window: The Secretary may issue revised invoices within 5 years of the initial invoice, unless all facts were not fully and truly disclosed (s 20(2)(b)). If the operator did not disclose fully, the revision can be made at any time. Interest continues after judgment: Section 25 overrides the usual court judgment interest rules; the Act’s interest rate continues until the charge is paid, even after a court judgment. Minimum interest threshold: Interest is not payable if the amount is less than $10 (s 24), but this is a narrow relief. Waiver of declaration limited to 24 months: The Secretary may waive a declaration requirement temporarily, but not if that would result in more than 24 months between declarations (s 14(3)). Operators cannot indefinitely avoid lodging declarations. Offence of false or misleading information is strict on knowledge/recklessness: The penalty is high (60/300 penalty units) and there is no reasonable excuse defence (s 64). Even reckless conduct suffices. Unauthorised use or disclosure of information carries up to 12 months imprisonment: Section 70 applies not only to officials but to anyone who obtains relevant information, including under an information protection agreement, creating broad criminal liability. Presumptions in evidence: The Act contains strong evidentiary presumptions. An invoice is proof of due issuing, the named person’s liability, correct calculation, and correctness of all details (s 74). A certificate signed by the Secretary is proof of liability, determination, and payment status (s 75). These presumptions shift the evidentiary burden to the operator. Service provisions: Documents can be served by post to an authorised address under the Infringements Act; if returned undelivered, they are deemed served after 7 days unless the person can prove they could not reasonably have received the document (s 71(4),(5)). The Secretary may update a person’s address based on third-party notification (s 71(6)). No requirement for actual knowledge: The Secretary may suspend or cancel registration without proving the operator actually received the notice; the deemed service provisions apply. Excluded vehicles: The definition of ZLEV excludes heavy vehicles but heavy vehicle is defined under the Heavy Vehicle National Law, which may include some vehicles that are not obviously heavy. Electric trucks may fall within that exclusion. Plug-in hybrid electric vehicles are included but at a lower rate (2.0c/km compared to 2.5c/km for full electric/hydrogen vehicles). Extraterritorial operation: The Act applies to use outside Victoria (s 6). Operators must record all travel, including interstate, as ‘not on specified roads’ only if it occurs on roads not falling within the definition of specified road (which includes highways at common law outside Victoria). This means travel on any road outside Victoria that would be a highway at common law may still be subject to the charge unless it is proved otherwise.

Registered operators of ZLEVs should adopt the following compliance steps based on the Act’s requirements. 1. Initial declaration: Upon first registering a ZLEV (or from 1 July 2021 for existing vehicles), lodge an initial declaration within 14 days. The declaration must include the odometer reading at that time and evidence of the reading (e.g., a photograph or service record). The form must be approved by the Secretary. Keep a copy. 2. Maintain accurate odometer records: Record all odometer readings at regular intervals, particularly at the start and end of each registration period. The subsequent declaration under section 11 requires either the current odometer reading or total distance travelled since the last declaration. Retain evidence of readings and any maintenance records. 3. Track non-specified-road travel: Accurately record the distance travelled on roads that are not specified roads (e.g., private roads not prescribed, or perhaps off-road travel). The operator must declare this distance to reduce the chargeable amount. The Secretary may assume all distance is on specified roads if no evidence is provided. Consider using GPS logs, trip sheets, or other reliable methods. 4. Lodge subsequent declarations on time: The deadline is the earliest of: a notice from the Secretary; 14 days after the last day of the current registration period; or the day of transfer or cancellation. Set internal reminders. If an extension or waiver is needed, apply in writing to the Secretary under section 13 or 14. 5. Pay invoices by the due date: Payment must be made by the date stated (at least 14 days after issue). Interest accrues from the day after the due date. Use the approved means (likely electronic transfer or BPAY). Keep proof of payment. 6. Respond to inspection notices: If the Secretary requires an inspection for odometer reading and vehicle identity verification, present the ZLEV at the specified time and place. If the time or place is inconvenient, request a change at least 24 hours before the date (s 60(2)). Failure to comply is an offence. 7. Keep records for 5 years: Retain all declarations, odometer evidence, non-specified-road travel logs, invoices, payment records, and any correspondence with the Secretary. The retention period is at least 5 years from when the record was made or obtained (s 63). Use a secure filing system. 8. Avoid false or misleading information: Ensure all information in declarations and evidence is accurate. Reckless inclusion of false information is an offence. If an error is discovered, contact the Secretary promptly to correct it (the Secretary may revise invoices under s 20). 9. If an invoice appears incorrect, lodge an objection within 60 days: Grounds are limited to distance, calculation, interest, or that the ZLEV is not subject to the charge. State grounds fully and in detail. Note that onus of proof is on the operator. The invoice remains payable while the objection is pending (s 57). 10. If registration is suspended, take immediate action: The suspension notice will specify what action is needed (e.g., lodge declaration, pay invoice). Do so within the specified period (at least 14 days) to avoid suspension taking effect. If suspension has already taken effect, still take the required action to have it lifted (s 32). If cancellation is imminent, lodge an objection or take the required action. 11. If registration is cancelled, return number plates if required: Within 14 days of cancellation, return plates to the Secretary or agent. Failure is an offence. 12. Monitor changes in law: The rate is indexed annually; the Minister may also determine not to vary it. Check the Government Gazette and the Department’s website for the applicable rate each financial year. The regulations may prescribe additional types of evidence, exemption circumstances for waiver, or other compliance details. 13. Handle information securely: If you obtain relevant information about another person under this Act (e.g., as part of a fleet arrangement), do not use or disclose it except as authorised by Part 6. Unauthorised use can attract imprisonment. For information-sharing with law enforcement or other bodies, ensure an information protection agreement is in place before disclosure (s 67). 14. Consider seeking professional advice: Given the onus of proof on objections and the complex determination formula, operators with high-value or complex travel patterns should engage a tax or legal adviser familiar with Victorian road user charges.