Division 4 Other special defences

91   Meaning of “deficiency concerning a vehicle or combination”

(cf model provisions, s 157)

In this Division:

deficiency concerning a vehicle or combination means:

(a)  a deficiency in or of the vehicle or combination or in or of any equipment carried in or on the vehicle or combination, or

(b)  a deficiency constituted by the absence of particular equipment that is required to be carried in or on the vehicle or combination.

92   Special defence for all owners or operators

(cf model provisions, s 158)

(1)  It is a defence to an applicable road law offence alleged to have been committed by a person as an owner or operator of a vehicle or combination if the person establishes that the vehicle or combination was being used at the relevant time by:

(a)  another person not entitled (whether by express or implied authority or otherwise) to use it, other than an employee or agent of the alleged offender, or

(b)  an employee of the alleged offender who was acting at the relevant time outside the scope of the employment, or

(c)  an agent (in any capacity) of the alleged offender who was acting at the relevant time outside the scope of the agency.

(2)  If the offence relates to a breach of an applicable road law in connection with alleged deficiencies concerning the vehicle or combination, the defence is not available unless the alleged offender establishes that:

(a)  the vehicle or combination had not, before it ceased to be under the alleged offender’s control, been driven on a road in Australia in breach of an Australian applicable road law arising in connection with all or any of those alleged deficiencies, and

(b)  one or more material changes, resulting in the alleged breach, had been made after the vehicle or combination had ceased to be under the alleged offender’s control.

93   Special defence for drivers, owners and operators of light vehicles

A driver or an owner or operator of a vehicle or combination (other than a heavy vehicle or heavy combination) prosecuted for an applicable road law offence involving a breach of a mass requirement has the benefit of the reasonable steps defence.

94   Special defence for drivers

(cf model provisions, s 159)

(1)  This section applies to an applicable road law offence involving deficiencies concerning a vehicle or combination.

(2)  It is a defence to an offence to which this section applies alleged to have been committed by a person as driver of the vehicle or combination if the person establishes that the person (whether as driver or otherwise):

(a)  did not cause or contribute to the deficiencies concerning the vehicle or combination and had no responsibility for or control over the maintenance of the vehicle or combination or its equipment at any relevant time, and

(b)  did not know and could not reasonably be expected to have known of the deficiencies, and

(c)  could not reasonably be expected to have sought to ascertain whether there were or were likely to be deficiencies concerning the vehicle or combination.

95   Special defence of compliance with direction

(cf model provisions, s 160)

It is a defence to an applicable road law offence if the person establishes that the conduct constituting the offence was done in compliance with a direction (whether or not a lawful direction) given by:

(a)  an authorised officer, or

(b)  an Australian Authority or a delegate of an Australian Authority.