Unlicensed to chill - why an esky was deemed a motor vehicle

A man was recently fined almost $1,500 for apparently operating an unregistered vehicle, without a licence.

So, why did that become a story, in The Age, the Herald Sun and the ABC?
Answer: the vehicle was an esky, and the man was riding it along a footpath.

But there is no need to panic - it is still possible to safely and lawfully transport cold beverages, whether by esky, 'chilly bin', or other preferred type of beverage conveyance.

Under the Road Safety Act 1986, it is an offence to use an unregistered motor vehicle on a highway (s 7) and to drive a motor vehicle on a highway (s 18) (unless there is an applicable exemption).  Conventional use of an esky will not contravene either provision, but as this recent news shows, the Road Safety Act can apply more broadly than the public might expect.

First, a footpath can be a highway under the Road Safety Act. A highway includes both 'roads' and 'road related areas'. A footpath or nature strip, which is adjacent to a road, is a road related area (as is, for example, an area that is open to the public and is designated for use by cyclists or animals).

Secondly, any vehicle with a motor may be a motor vehicle, should it be used on a road or road related area. A motor vehicle is any 'vehicle that is used or intended to be used on a highway and that is built to be propelled by a motor that forms part of the vehicle'.  So even if  you attach a motor to your esky, it will still only be a motor vehicle if it is used, or intended to be used, on a highway. That needs to be considered in relation to each particular vehicle or esky (rather than motorised eskies as a class). While it is doubtful that any motorised esky is intended to be used on a highway, it will generally be sufficient if it is actually used on one.

There are also exemptions which could be useful for prospective operators of motorised eskies (and like vehicles) to know about. For example, if one walks with one's motorised esky, rather than rides it, and it has a maximum speed of less than 7 km/h, it would be exempt by an order that has been made under s 3(2) of Road Safety Act. The same order also exempts certain scooters and bicycles. Motorised wheelchairs are exempt under the Act itself.

This case is (hopefully) somewhat unusual. That said, public authorities often have other issues arising under the Road Safety Act (such as in relation to land under their control), or under the Road Management Act 2004, Transport Integration Act 2010, or about roads generally, with which we can assist.

For such road related queries, please contact:

Mark Egan
Principal Solicitor
mark.egan@vgso.vic.gov.au

Anthony Leggiero
Acting Managing Principal Solicitor
anthony.leggiero@vgso.vic.gov.au

Changes to the Public Private Partnerships guidelines

In May 2013, the Treasurer Michael O'Brien announced significant reforms to the Victorian Government's public private partnership (PPP) guidelines.  The new Partnerships Victoria Requirements, together with the National PPP Policy and Guidelines, apply to the next phase of Victorian PPP projects.

The areas of reform include the following.

Expanding the type of services that can be provided

The Government will consider expanding the type of services that can be provided under the PPP model to include services that were previously delivered by the public sector.  For example, the Ravenhall Prison Project (for which Expressions of Interest are currently being evaluated) will include custodial services provided by the private sector. 

Applying the PPP model to small-scale projects

Projects valued at less than $50 million may use a streamlined PPP model to generate private investment if they have suitable value for money drivers.  Alternatively, projects can also be bundled together to attract the PPP model.

Changing how value for money is assessed

The Public Sector Comparator (PSC) will continue to be used as a benchmark to test value for money for PPP projects.

However, if bidders do not meet the risk adjusted PSC cost expectations through the procurement process, this does not necessarily mean the Government will revert to traditional design and construct delivery.

Government must also now develop a scope ladder alongside each PSC.  Its purpose is to identify any scope items that bidders can remove or add should bids be over or under the PSC. 

Reducing bid costs

The reimbursement of partial bid costs for some PPP projects will be trialed.  Government will communicate its approach for reimbursement for a particular project at the time of releasing the Expression of Interest.  The Government may also consider reimbursing some bid costs incurred by losing bidders in exchange for intellectual property in their unsuccessful bid, on a project specific basis.

The new requirements are also aimed at process improvements, including to:

• minimise information submission requirements; 
• shortlist only two bidders where appropriate; and 
• avoid ‘best and final offer’ processes where possible.

Modified financing structures

The Government will consider making partial capital contributions for some PPP projects.  Normally, construction of PPPs is financed entirely by the private sector and repaid by the Government over the life of the project.  This change in policy is aimed at increasing private sector investment by providing an alternative to full private finance.

Government contributions could be made either as:

• milestone payments during construction (eg for large scale projects); or
• a lump sum payment once construction is complete. 

For more information about public private partnerships, please contact

Julie Freeman
Assistant Victorian Government Solicitor
t 9947 0404
julie.freeman@vgso.vic.gov.au