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.