National Transport Commission (Model Legislation Heavy Vehicle Driver Fatigue) Regulations 2007 (Cth)
National Transport Commission (Model Legislation—Heavy Vehicle Driver Fatigue) Regulations 2007
Select Legislative Instrument No. 318, 2007
made under the
National Transport Commission Act 2003
Compilation No. 1
Compilation date: 5 March 2016
Includes amendments up to: F2016L00170
Registered: 5 July 2016
About this compilation
This compilation
This is a compilation of the National Transport Commission (Model Legislation—Heavy Vehicle Driver Fatigue) Regulations 2007 that shows the text of the law as amended and in force on 5 March 2016 (the compilation date).
The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register ( The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.
Application, saving and transitional provisions for provisions and amendments
If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
Editorial changes
For more information about any editorial changes made in this compilation, see the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.
Self‑repealing provisions
If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.
Contents
1Name of Regulations.................................................................................................... 1
2Commencement............................................................................................................ 1
3Road transport legislation—heavy vehicle driver fatigue............................................ 1
Schedule 1—Text of the draft Bill for the Road Transport—Heavy Vehicle Driver Fatigue Act 2007 2
Endnotes120
Endnote 1—About the endnotes 120
Endnote 2—Abbreviation key 121
Endnote 3—Legislation history 122
Endnote 4—Amendment history 123
1Name of Regulations
These Regulations are the National Transport Commission (Model Legislation—Heavy Vehicle Driver Fatigue) Regulations 2007.
2Commencement
These Regulations commence on the day after they are registered.
3Road transport legislation—heavy vehicle driver fatigue
For section 7 of the National Transport Commission Act 2003 (the NTC Act), Schedule 1 sets out model legislation, in the form of a Bill for an Act, about heavy vehicle driver fatigue.
Note 1:The model legislation set out in Schedule 1 does not have the force of law—see paragraph 7(2)(a) of the NTC Act.
Note 2:These Regulations must be made in accordance with the Agreement—see subparagraph 3(b)(ii) of the NTC Act.
Note 3:These Regulations are not subject to disallowance—see regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003.
Note 4:These Regulations are not subject to sunsetting—see regulations made for the purposes of paragraph 54(2)(b) of the Legislation Act 2003.
Note 5: The text set out in Schedule 1 is that of a draft Bill prepared for the National Transport Commission and approved by the Australian Transport Council on 14 February 2007, but never actually enacted.
Schedule 1—Text of the draft Bill for the Road Transport—Heavy Vehicle Driver Fatigue Act 2007
Drafting note: This Bill has been drafted on the understanding that it will be made in each jurisdiction in conjunction with the equivalent of the C & E Act.
Contents
Page
Part 1—Preliminary 7
Division 1.1—Introductory 7
1............ Name of this Act........................................................................................................... 7
2............ Commencement............................................................................................................ 7
3............ Main purpose of this Act.............................................................................................. 7
4............ Outline of the main features of this Act........................................................................ 7
Division 1.2—Interpretation 9
5............ Definitions—the dictionary etc..................................................................................... 9
6............ Examples....................................................................................................................... 9
7............ Notes............................................................................................................................. 9
8............ Act to be read with Compliance and Enforcement Act................................................ 9
9............ Relationship with other legislation and legal instruments.......................................... 10
Division 1.3—How this Act applies 11
Subdivision 1.3.1—Regulated heavy vehicles 11
10.......... What is a regulated heavy vehicle.............................................................................. 11
Subdivision 1.3.2—Who this Act applies to 12
11.......... Who is a driver........................................................................................................... 12
12.......... Who are the parties in the chain of responsibility...................................................... 12
13.......... Who is an employer.................................................................................................... 12
14.......... Who is a prime contractor.......................................................................................... 13
15.......... Who is an operator..................................................................................................... 13
16.......... Who is a scheduler...................................................................................................... 13
17.......... Who is a consignor..................................................................................................... 13
18.......... Who is a consignee..................................................................................................... 14
19.......... Who is a loading manager.......................................................................................... 14
20.......... Who is a loader........................................................................................................... 14
21.......... Who is an unloader..................................................................................................... 15
Subdivision 1.3.3—Where this Act applies 15
22.......... Jurisdictions and zones............................................................................................... 15
Division 1.4—What does reasonable steps mean 16
23.......... What are reasonable steps.......................................................................................... 16
24.......... What is the reasonable steps defence......................................................................... 17
25.......... Deciding whether persons ought reasonably to have known...................................... 18
Part 2—Duties relating to fatigue 19
Division 2.1—What is fatigue 19
26.......... What is fatigue............................................................................................................ 19
27.......... What is impaired by fatigue........................................................................................ 20
Division 2.2—Duties to avoid and prevent fatigue 22
28.......... Driver’s duty to avoid driver fatigue.......................................................................... 22
29.......... Duty on parties in the chain of responsibility to prevent driver fatigue..................... 22
Division 2.3—Additional duties on certain parties in the chain of responsibility 24
30.......... Duties on employers, prime contractors and operators.............................................. 24
31.......... Duties on schedulers................................................................................................... 25
32.......... Duties on consignors and consignees......................................................................... 26
33.......... Duties on loading managers........................................................................................ 27
Division 2.4—Certain requests, contracts etc prohibited 29
34.......... Certain requests etc prohibited................................................................................... 29
35.......... Certain contracts etc prohibited.................................................................................. 29
Part 3—Duties relating to work and rest times 31
Division 3.1—Key concepts for this Part 31
Subdivision 3.1.1—Work and rest time 31
36.......... What is work/rest hours option................................................................................... 31
37.......... What is work time....................................................................................................... 31
38.......... What is rest time......................................................................................................... 31
39.......... What is a work/rest change......................................................................................... 32
Subdivision 3.1.2—Counting time 32
40.......... Counting time, including work and rest time............................................................. 32
41.......... Counting time within the participating zone.............................................................. 33
42.......... Counting time from outside the participating zone.................................................... 33
Division 3.2—Standard hours 34
43.......... What this Division is about......................................................................................... 34
44.......... Standard hours—solo drivers..................................................................................... 34
45.......... Standard hours—solo drivers of buses....................................................................... 37
46.......... Standard hours—two‑up drivers................................................................................. 39
47.......... Defence relating to short rest breaks.......................................................................... 43
Division 3.3—BFM hours 44
48.......... What this Division is about......................................................................................... 44
49.......... BFM hours—solo drivers........................................................................................... 44
50.......... Defence for solo drivers relating to split rest breaks.................................................. 44
51.......... BFM hours—two‑up drivers....................................................................................... 47
Division 3.4—AFM hours 48
52.......... AFM hours.................................................................................................................. 51
Division 3.5—Changing work/rest hours option 53
53.......... Changing work/rest hours option................................................................................ 53
Part 4—Duties relating to record keeping 55
Division 4.1—Key concepts for this Part 55
54.......... What is 100 km work and 100+ km work.................................................................. 55
55.......... What is a driver’s base and record location................................................................ 55
Division 4.2—Work diary requirements 56
56.......... Driver must carry work diary..................................................................................... 56
57.......... Information that driver must record in work diary..................................................... 57
58.......... How driver must record information in work diary.................................................... 59
59.......... Destroyed, lost, stolen or malfunctioning work diaries.............................................. 59
60.......... Malfunctioning odometers.......................................................................................... 61
61.......... Duty on employers, prime contractors, operators and schedulers to ensure driver compliance 62
Division 4.3—Records relating to drivers 63
62.......... Information that record keeper must record............................................................... 63
Division 4.4—False work records etc. 66
63.......... Definitions for this Division....................................................................................... 66
64.......... False entries................................................................................................................ 66
65.......... Keeping 2 work diaries simultaneously prohibited.................................................... 66
66.......... Possession of purported work records etc prohibited................................................. 67
67.......... Defacing or changing work records etc prohibited..................................................... 67
68.......... False representation of work records prohibited........................................................ 67
69.......... Making entries in someone else’s work records prohibited....................................... 67
70.......... Destruction of certain work records prohibited.......................................................... 68
71.......... Tampering with electronic work diaries prohibited.................................................... 68
Division 4.5—Written work diaries 70
72.......... Form of written work diaries...................................................................................... 70
73.......... Issue of written work diaries....................................................................................... 70
Division 4.6—Electronic work diaries 72
74.......... Approval of electronic work diaries........................................................................... 72
75.......... Variation or cancellation of approval—on application.............................................. 72
76.......... Variation or cancellation of approval—without application...................................... 73
Part 5—Accreditation and exemptions 75
Division 5.1—Accreditation 75
Subdivision 5.1.1—What is an accreditation 75
77.......... What is an accreditation............................................................................................. 75
Subdivision 5.1.2—BFM accreditation 75
78.......... Applying for BFM accreditation................................................................................ 75
79.......... Granting BFM accreditation....................................................................................... 76
80.......... Conditions of BFM accreditation............................................................................... 77
81.......... Information that operator must record........................................................................ 78
82.......... Operator must advise of change or end of accreditation............................................ 78
Subdivision 5.1.3—AFM accreditation 79
83.......... Applying for AFM accreditation................................................................................ 79
84.......... Granting AFM accreditation....................................................................................... 80
85.......... Conditions of AFM accreditation............................................................................... 82
86.......... Driver must carry AFM accreditation details............................................................. 83
87.......... Information that operator must record........................................................................ 83
88.......... Operator must advise of change or end of accreditation............................................ 84
Division 5.2—Exemptions 85
Subdivision 5.2.1—Exemptions for emergency services 85
89.......... Exemptions for emergency services........................................................................... 85
Subdivision 5.2.2—Other exemptions 86
90.......... What is an exemption.................................................................................................. 86
91.......... Work/rest hours exemptions....................................................................................... 86
92.......... Work diary exemptions............................................................................................... 87
93.......... Applying for an exemption......................................................................................... 87
94.......... Granting an exemption............................................................................................... 88
Division 5.3—Variation, suspension or cancellation of accreditation or exemptions 89
Subdivision 5.3.1—On application of holder 89
95.......... Variation or cancellation of accreditation or exemption—on application.................. 89
Subdivision 5.3.2—Without application of holder 89
96.......... Grounds for variation—without application............................................................... 89
97.......... Grounds for cancellation—without application.......................................................... 90
98.......... Variation or cancellation of accreditation or individual exemption—without application 90
99.......... Immediate suspension of accreditation or an individual exemption in public interest 91
100........ Variation or cancellation of an exemption granted to a class of persons................... 92
Subdivision 5.3.3—Return of accreditation certificate or exemption 92
101........ Return of accreditation certificate or exemption........................................................ 92
Division 5.4—Replacement of lost etc accreditation certificates or exemptions 93
102........ Replacement of lost etc accreditation certificates or exemptions............................... 93
Division 5.5—Offences relating to accreditation etc 94
103........ Offence to falsely represent that accreditation etc held.............................................. 94
104........ Offences relating to auditors....................................................................................... 94
Part 6—Compliance and enforcement provisions 95
Division 6.1—Risk categorisation of offences 95
105........ Categories of offences................................................................................................ 95
106........ How is an offence category specified......................................................................... 95
Division 6.2—Enforcement powers 96
107........ Powers of authorised officers or police officers in relation to fatigue and work/rest hours breaches 96
108........ Other enforcement powers.......................................................................................... 97
109........ Duty on authorised officers and police officers to annotate driver’s work diary....... 98
Division 6.3—Penalties 99
110........ Penalties...................................................................................................................... 99
111........ Provisions relating to first offences and second or subsequent offences.................. 100
Part 7—Decision‑making provisions 102
Division 7.1—What is a decision 102
112........ What is a decision..................................................................................................... 102
Division 7.2—Who may make a decision 103
113........ Authority may delegate powers................................................................................ 103
114........ Fatigue Authorities Panel......................................................................................... 103
Division 7.3—Referral and mutual recognition of decisions 105
115........ Referral of matters to the Panel and other Authorities............................................. 105
116........ Mutual recognition of certain decisions................................................................... 105
117........ Mutual recognition of other decisions...................................................................... 106
Division 7.4—Notification and recording of decisions 107
118........ Notifying other Authorities of decisions.................................................................. 107
119........ Register of decisions................................................................................................. 107
Division 7.5—Reconsideration and review of decisions 108
120........ Decisions that may be reconsidered and reviewed................................................... 108
121........ Reconsideration of decisions.................................................................................... 108
122........ Review of decisions by <relevant jurisdiction tribunal or court>........................... 109
Part 8—Miscellaneous 110
Division 8.1—Transitional provisions 110
123........ TFMS applications.................................................................................................... 110
124........ TFMS to BFM.......................................................................................................... 110
125........ TFMS to AFM.......................................................................................................... 110
126........ TFMS otherwise lapses............................................................................................. 111
127........ Applications for reconsideration by Authority......................................................... 111
128........ Applications for review by <relevant jurisdiction tribunal or court>..................... 111
129........ Exemption applications............................................................................................ 111
130........ Existing exemptions continue................................................................................... 111
131........ Prosecution of offences that are undecided.............................................................. 112
132........ Existing logbooks..................................................................................................... 112
133........ Repeal....................................................................................................................... 112
Division 8.2—Regulations 113
134........ Regulations............................................................................................................... 113
Dictionary 114
A Bill for an Act to provide in relation to heavy vehicle driver fatigue as part of a system of nationally consistent road transport laws
Enacting formula
Part 1—Preliminary
Division 1.1—Introductory
1 Name of this Act
This Act is the Road Transport—Heavy Vehicle Driver Fatigue Act 2006.
2 Commencement
(1) Section 1 and this section commence on gazettal.
(2) The remaining provisions of this Act commences on a day or days specified by the Minister by notice in the Gazette.
3 Main purpose of this Act
The main purpose of this Act is to provide for the safe management of the fatigue of drivers of regulated heavy vehicles while they are driving on a road.
4 Outline of the main features of this Act
(1) This Act applies to:
(a) drivers of regulated heavy vehicles; and
(b) certain persons whose activities influence the conduct of drivers of regulated heavy vehicles in such a way as to affect the drivers’ fatigue when driving on a road.
Examples of subsection (1)(b)
• employers and prime contractors of drivers of regulated heavy vehicles
• operators of regulated heavy vehicles
• persons who schedule goods or passengers for transport by regulated heavy vehicles or who schedule drivers of regulated heavy vehicles
• consignors and consignees of goods for transport by regulated heavy vehicles
• loaders and unloaders of goods for transport by regulated heavy vehicles
• persons who manage or operate premises where regulated heavy vehicles are loaded or unloaded or who supervise the activities of loaders and unloaders
Note: It is the performance of any these functions, whether exclusively or occasionally, that determines whether a person falls within any of these definitions, rather than their job title or contractual description.
(2) This Act, in Part 2 (Duties relating to fatigue), provides for general duties to avoid or prevent drivers from driving regulated heavy vehicles on a road while they are impaired by fatigue and for extra duties on certain parties in the chain of responsibility to do certain things to help drivers to comply with this Act.
(3) This Act, in Part 3 (Duties relating to work and rest times), provides for 3 work/rest hours options for drivers, namely:
(a) the standard hours for drivers (i.e. the standard work and rest times); and
(b) the basic fatigue management scheme (the BFM scheme); and
(c) the advanced fatigue management scheme (the AFM scheme); and
provides that parties in the chain of responsibility are liable for ensuring the driver complies with his or her relevant work/rest hours option.
(4) This Act, in Part 4 (Duties relating to record keeping), provides for recording the work and rest times of drivers (amongst other things).
(6) This Act, in Part 5 (Accreditation and exemptions), enables an operator to seek accreditation and a driver, employer, prime contractor or operator to seek an exemption from various requirements of this Act.
Division 1.2—Interpretation
5 Definitions—the dictionary etc
(1) The dictionary at the end of this Act defines certain words and expressions, and includes references to certain words and expressions that are defined elsewhere in this Act (signpost definitions).
Example: The signpost definition ‘regulated heavy vehicle—see section 10(1)’ means that the expression regulated heavy vehicle is defined in section 10(1).
Note:The dictionary includes a signpost definition for a word or expression only if the word or expression is used in more than 1 section.
(2) The dictionary is part of this Act.
(3) A definition in this Act applies to each use of the word or expression in this Act, unless the contrary intention appears.
(4) An expression used in this Act that is also used (whether or not defined) in the C & E Act has, unless the contrary intention appears, the same meaning in this Act as in that Act.
6 Examples
(1) An example in this Act is part of this Act.
(2) If this Act includes an example of the operation of a provision of the Act:
(a) the example is not exhaustive; and
(b) the example does not limit, but may extend, the meaning of the provision.
7 Notes
A note in this Act is explanatory and is not part of the Act.
Drafting note: The interpretation legislation of some jurisdictions may already make provision for examples and notes consistent with sections 6 and 7.
8 Act to be read with Compliance and Enforcement Act
(1) This Act is to be read as one with the C & E Act.
(2) For the purposes of the C & E Act, this Act is to be taken to be a road law.
(3) Any provision of the C & E Act that is relevant to complying with or enforcing a road law or that Act applies in relation to this Act unless the provision is only able to be applied in relation to a breach of a mass, dimension or load restraint requirement under that Act.
Example: Section 185 of the C & E Act makes void any term of a contract or agreement that purports to exclude, limit or modify the operation of that Act. This provision is able to be applied in relation to breaches other than breaches of a mass, dimension or load restraint requirement and therefore under this subsection it also applies in relation to this Act.
(4) The regulations may make further provision about the application of provisions of the C & E Act to this Act.
9 Relationship with other legislation and legal instruments
Nothing in this Act abrogates a provision of another law or legal instrument to the extent that the law or legal instrument is not inconsistent with this Act.
Examples of another law or legal instrument
• another law relating to fatigue or work/rest hours
• an industrial award that provides for fatigue management or sets out agreed work/rest hours
• a contract that provides for fatigue management or sets out agreed work/rest hours
Division 1.3—How this Act applies
Subdivision 1.3.1—Regulated heavy vehicles
10 What is a regulated heavy vehicle
(1) A regulated heavy vehicle is:
(a) a heavy truck; or
(b) a bus.
Note: A regulated heavy vehicle is a sub‑category of heavy vehicle as defined in the C & E Act.
(2) A heavy truck is:
(a) a motor vehicle (except a bus or tram) with a GVM over 12 tonnes; or
(b) a motor vehicle (except a bus or tram) that is part of a combination, if the total of the GVMs of the vehicles in the combination is over 12 tonnes.
(3) A bus is a motor vehicle built mainly to carry people that seats over 12 adults (including the driver).
(4) A regulated heavy vehicle does not include:
(a) plant; or
(b) a motor home.
(5) Plant is a motor vehicle that:
(a) is built, or permanently modified, primarily to operate as a machine or implement:
(i) off‑road; or
(ii) on a road‑related area; or
(iii) on an area of road that is under construction; and
(b) is not capable of carrying goods or passengers by road.
Example of what is plant
An agricultural machine, backhoe, bulldozer, excavator, forklift, front‑end loader, grader, tractor or a motor vehicle that is registered as a type P plant‑based special purpose vehicle.
Example of what is not plant
A truck‑mounted crane or truck‑mounted drilling rig.
(6) A motor home is a rigid or articulated motor vehicle or combination that is built, or permanently modified, primarily for residential purposes, but does not include a motor vehicle only because it is constructed with a sleeper berth.
Drafting note: Implementing jurisdictions may vary the definition of regulated heavy vehicle to apply more broadly than provided for in this model legislation.
Subdivision 1.3.2—Who this Act applies to
11 Who is a driver
(1) A reference to a driver is a reference to the driver of a regulated heavy vehicle and includes an employed driver and a self‑employed driver.
Note: Driver is defined in the C & E Act.
(2) An employed driver is a driver who is employed by someone else to drive a regulated heavy vehicle.
(3) A driver who is not an employed driver but is driving a regulated heavy vehicle is a self‑employed driver.
12 Who are the parties in the chain of responsibility
(1) These people are parties in the chain of responsibility in relation to a regulated heavy vehicle:
(a) the employer of the driver of the vehicle; and
(b) the prime contractor of the driver; and
(c) the operator of the vehicle; and
(d) the scheduler of goods or passengers for transport by the vehicle, and the scheduler of its driver; and
(e) the consignor of goods for transport by the vehicle; and
(f) the consignee of goods for transport by the vehicle; and
(g) the loading manager of goods for transport by the vehicle; and
(h) the loader of goods on to the vehicle; and
(i) the unloader of goods from the vehicle.
Note: It is the performance of any these functions, whether exclusively or occasionally, that determines whether a person falls within any of these definitions, rather than their job title or contractual description.
(2) A person may be a party in the chain of responsibility in more than 1 capacity.
Example: A person may be an employer, operator and consignor at the same time in relation to a driver and be subject to duties in each of the capacities.
Note: Section 147 of the C & E Act also provides that a person may be liable for a breach in one or more capacities under the chain of responsibility.
13 Who is an employer
An employer is a person who engages someone else to drive a regulated heavy vehicle under a contract of employment, apprenticeship or training.
Example of an employer
A labour hire company.
14 Who is a prime contractor
A prime contractor is a person who engages someone else to drive a regulated heavy vehicle under a contract for services.
Example of a prime contractor
A logistics business that engages a subcontractor to transport goods.
15 Who is an operator
(1) An operator of a regulated heavy vehicle is a person who is responsible for controlling or directing the operations of:
(a) in the case of a vehicle (including a vehicle in a combination)—the vehicle; or
(b) in the case of a combination—the towing vehicle in the combination.
(2) A person is not an operator merely because:
(a) the person owns a vehicle or combination; or
(b) the person drives a vehicle or combination; or
(c) the person maintains, or arranges for the maintenance of, a vehicle or combination; or
(d) the person arranges for the registration of a vehicle.
16 Who is a scheduler
A scheduler is:
(a) a person who schedules a driver’s work or rest time; or
(b) a person who schedules the transport of passengers or goods by road; or
(c) a person who makes a demand that affects a time in a schedule.
Example of a person who makes a demand that affects a time in a schedule
The distribution manager for a retail chain or a loading agent or freight forwarder who sets a deadline for a delivery.
Example of a person who does not make a demand that affects a time in a schedule
A person who has arranged for goods to be couriered by a transport company as a ‘part load’ who has no control over the deadline for the delivery of the goods.
17 Who is a consignor
A consignor of goods is:
(a) a person who, with that person’s authority, is named or otherwise identified as the consignor of the goods in the transport documentation relating to the transport of the goods by road; or
(b) a person who engages an operator of a vehicle or combination, either directly or indirectly or through an agent or other intermediary, to transport the goods by road; or
(c) a person who has possession of, or control over, the goods immediately before the goods are transported by road; or
(d) a person who loads a vehicle with the goods, for transport by road, at a place where goods in bulk are stored or temporarily held and that is unattended (except by a driver of the vehicle, a trainee driver or any person necessary for the normal operation of the vehicle) during loading; or
(e) if paragraphs (a) to (d) do not apply to the person or anyone else, and the goods are imported into Australia—a person who imports the goods.
18 Who is a consignee
A consignee of goods is:
(a) a person who, with that person’s authority, is named or otherwise identified as the intended consignee of the goods in the transport documentation relating to the transport of the goods by road; or
(b) a person who actually receives the goods after completion of their transport by road;
but does not include a person who merely unloads the goods.
19 Who is a loading manager
A loading manager is:
(a) a person who manages, or is responsible for the operation of, a site or premises where regulated heavy vehicles are loaded or unloaded; or
(b) a person who supervises, manages or controls any activity undertaken by a loader or unloader.
Examples of a loading manager
A company that runs, or a site manager for, a distribution centre.
20 Who is a loader
A loader of goods is:
(a) a person who loads a vehicle or combination with goods for transport by road; or
(b) a person who loads a vehicle or combination with a freight container (whether or not containing goods) for transport by road; or
(c) without limiting the above, a person who loads a freight container already in or on a vehicle or combination with goods for transport by road; or
(d) a person who supervises an activity mentioned in paragraph (a), (b) or (c); or
(e) a person who manages or controls an activity mentioned in paragraph (a), (b), (c) or (d).
21 Who is an unloader
An unloader of goods is:
(a) a person who unloads a vehicle or combination with goods for transport by road; or
(b) a person who unloads a vehicle or combination with a freight container (whether or not containing goods) for transport by road; or
(c) without limiting the above, a person who unloads a freight container already in or on a vehicle or combination with goods for transport by road; or
(d) a person who supervises an activity mentioned in paragraph (a), (b) or (c); or
(e) a person who manages or controls an activity mentioned in paragraph (a), (b), (c) or (d).
Drafting note: Several of these definitions are exactly the same as in the C & E Act, while others are somewhat modified. Implementing jurisdictions may decide to reference the definitions directly in the C & E Act where they are the same.
Subdivision 1.3.3—Where this Act applies
22 Jurisdictions and zones
(1) This jurisdiction is <insert name of jurisdiction>.
(2) Another jurisdiction is a State or Territory other than this jurisdiction.
(3) A participating jurisdiction is:
(a) this jurisdiction; or
(b) another jurisdiction, if that jurisdiction has a corresponding fatigue law.
(4) The participating zone is all participating jurisdictions.
(5) The non‑participating zone is all jurisdictions that are not participating jurisdictions.
Division 1.4—What does reasonable steps mean
23 What are reasonable steps
(1) Where a provision of this Act requires a person to take all reasonable steps to do a specified thing or achieve a specified outcome, the person must:
(a) identify and assess, on a regular basis, the risks to doing that thing or achieving that outcome; and
Examples of ways to identify and assess risks
• consulting drivers, other parties in the chain of responsibility, unions and industry associations about those risks
• reviewing driving or work schedules and work records, including opportunities for rest breaks
• reviewing loading and unloading times and delays at loading and unloading places
• reviewing contractual arrangements and documentation relating to the consignment and delivery of goods
• regular health and safety audits
• regularly assessing driver fitness for duty
• analysing injury and incident reports
(b) manage those risks.
(2) Managing a risk means:
(a) taking reasonable steps to eliminate the risk; or
(b) if it is not reasonably practicable to eliminate or prevent the risk—taking reasonable steps to reduce the risk, or to minimise the likelihood of the risk eventuating.
Examples of ways to manage risks
• workplace procedures and policies that relate to fatigue and compliance with work/rest hours
• contingency planning in relation to fatigue and work/rest hours
• a program to report and monitor fatigue‑related incidents, risks and hazards
• a program for assessing driver fitness for duty
• training and information for drivers, staff and parties in the chain of responsibility about fatigue and compliance with work/rest hours
• appropriate supervision and management of drivers, staff and parties in the chain of responsibility
• scheduling arrangements that take account of fatigue risks and work/rest hours
• allowing for traffic or other delays in scheduling
• a system for giving drivers sufficient notice of schedule changes
• a system to maintain equipment, work systems and work records
• compliance assurance conditions in relevant commercial arrangements with other parties in the chain of responsibility
• avoiding incentives or demands in commercial arrangements that may cause, permit, encourage or contribute to fatigue or breaches of work/rest hours
• a system for monitoring and remedying problems related to fatigue and work/rest hours
Note: Section 185 of the C & E Act voids any term of a contract or agreement that purports to exclude, limit or modify the operation of that Act. This section also applies to this Act—see section 6 above.
(3) The court may have regard to anything that it considers to be relevant when it is deciding whether things that the person did, or did not do, were reasonable steps, including:
(a) the nature of the risk that the person was attempting to, or should have been attempting to, address; and
(b) the likelihood of that risk eventuating and the degree of harm that would result if it did eventuate; and
(c) if a driver has driven while impaired by fatigue or in breach of the work/rest hours—the circumstances of the offence (e.g. the risk category that the offence belongs to); and
(d) the degree to which the person (either personally or through an agent or employee) had the ability to eliminate, prevent or reduce the risk or to minimise likelihood of the risk eventuating; and
(e) the experience, expertise and knowledge that the person, or the person’s agent or employee, had or ought reasonably have had; and
(f) the availability and suitability of ways to eliminate, prevent or reduce the risk or to minimise the likelihood of the risk eventuating; and
(g) the body of fatigue knowledge.
(4) Evidence that the person had complied with a registered industry code of practice in relation to the matters that the offence relates to, is evidence that the person had taken reasonable steps.
Note: Industry codes of practice may be registered under section 179 (Registration of industry codes of practice) of the C & E Act or under a corresponding road law.
(5) However, a person who is charged with an offence may rely on subsection (4) only if the person serves a notice of intention to do so on the prosecution at least 28 days before the day on which the hearing for the offence is to start.
24 What is the reasonable steps defence
If a provision states that a person has the benefit of the reasonable steps defence for an offence, it is a defence to a charge for the offence for the person to prove that:
(a) the person had taken all reasonable steps to prevent the contravention concerned; or
(b) the person could not reasonably be expected to have taken any steps to prevent the contravention concerned.
Note: Section 23 explains what reasonable steps are.
25 Deciding whether persons ought reasonably to have known
If, in a prosecution for an offence against this Act, it is relevant to prove that someone ought reasonably to have known something, the issue must be decided having regard to:
(a) the person’s abilities, experience, expertise, knowledge, qualifications and training; and
(b) the circumstances of the offence; and
(c) any other matters prescribed by the regulations.
Part 2—Duties relating to fatigue
Division 2.1—What is fatigue
26 What is fatigue
(1) Fatigue includes for example:
(a) feeling sleepy; and
(b) feeling physically or mentally tired, weary or drowsy; and
(c) feeling exhausted or lacking energy; and
(d) behaving in a way that is consistent with paragraph (a), (b) or (c).
Note: Fatigued has a meaning that corresponds to the meaning of fatigue in subsection (1). This is the effect of section 18A (Parts of speech and grammatical forms) of the Acts Interpretation Act 1901 of the Commonwealth.
Drafting note: The above note will need to be changed to refer to the appropriate interpretation legislation of the jurisdiction adopting the model Act.
(2) When deciding whether a driver is fatigued, a court may take into account anything it considers is relevant, including for example:
(a) what is commonly understood as being fatigued; and
(b) the causes of fatigue; and
(c) the signs of fatigue; and
(d) the body of fatigue knowledge; and
(e) any matter prescribed by the regulations.
(3) A cause of fatigue is any factor that causes or contributes to a person’s fatigue while driving a regulated heavy vehicle on a road (whether or not the cause arises while the person is at work).
Examples of causes of fatigue
• physical or mental exertion
• long periods of time awake
• not enough sleep or not enough restorative sleep
• not enough rest breaks
• a person’s circadian rhythm (i.e. the “body clock”)
• environmental stress (e.g. heat, noise, vibrations)
• personal health
(4) A sign of fatigue is a sign that a person was, is, or will be fatigued while driving a regulated heavy vehicle on a road (whether the sign manifests itself before, during or after work).
Examples of signs of fatigue
• a lack of alertness
• an inability to concentrate
• a reduced ability to recognise or respond to external stimuli
• poor judgement or memory
• making more mistakes than usual
• drowsiness, or falling asleep, at work (including micro sleeps)
• finding it difficult to keep the eyes open
• needing more frequent naps than usual
• not feeling refreshed after sleep
• excessive head nodding or yawning
• blurred vision
• mood changes, increased irritability or other changes to the person’s mental health
• changes to the person’s health or fitness
(5) The body of fatigue knowledge includes any accreditation scheme, scientific knowledge or expert opinion, guidelines, standards or other knowledge that is relevant to preventing or managing the exposure of risk of fatigue, either at a workplace or on a road.
(6) In proceedings for an offence under this Act, a statement by the complainant that, at a specified time or during a specified period, the complainant observed a specified driver exhibiting specified behaviour is evidence of that.
(7) A statement by the complainant is a statement in a complaint or charge made by the person bringing the proceedings.
27 What is impaired by fatigue
(1) A driver is impaired by fatigue if the driver is fatigued to the extent that he or she is incapable of driving a vehicle safely.
Note: Section 26(1) explains what fatigue and fatigued mean.
(2) When deciding whether a driver was impaired by fatigue, a court may take into account anything it considers is relevant, including for example:
(a) any relevant cause of fatigue or sign of fatigue that was evident, and the degree to which it may indicate that the driver was impaired by fatigue; and
(b) any behaviour of the driver that may have resulted from being impaired by fatigue;
Examples
• the circumstances of any incident, crash or near miss
• poor driving judgement
• inattentive driving (e.g. drifting into other lanes or not changing gears smoothly)
(c) the nature and extent of any physical or mental exertion by the driver; and
(d) whether the driver was in breach of his or her work/rest hours.
Note: Sections 26(3) and (4) explain what a cause of fatigue and a sign of fatigue are.
(3) A court may consider a driver to be impaired by fatigue even if the driver has complied with any requirements under this Act (e.g. the standard hours) or under any other legislation.
(4) In proceedings for an offence under this Act, a statement by the complainant that, at a specified time or during a specified period, the complainant observed a specified driver exhibiting specified behaviour is evidence of that.
(5) A statement by the complainant is a statement in a complaint or charge made by the person bringing the proceedings.
Division 2.2—Duties to avoid and prevent fatigue
28 Driver’s duty to avoid driver fatigue
(1) A person must not drive a regulated heavy vehicle on a road while he or she is impaired by fatigue.
Penalty: the penalty for a severe risk offence.
Note 1: A driver may be impaired by fatigue even though he or she has complied with other requirements of this Act—see section 27(3).
Note 2: Section 106 explains how an offence is specified as a severe risk offence. Section 110 sets out the penalties for severe risk offences.
(2) An offence against subsection (1) is an offence of absolute liability.
(3) If, in relation to conduct at a particular time in relation to which a driver has been charged with an offence under subsection (1), the driver has been convicted of a prescribed driver offence under another law in relation to the same conduct, the court must discharge the proceedings against the driver.
(4) If, in relation to conduct at a particular time in relation to which a driver has been charged with an offence under subsection (1), the driver has been convicted, the court must discharge any proceedings against the driver for a prescribed driver offence under another law in relation to the same conduct.
(5) A prescribed driver offence under another law means an offence under another law of this jurisdiction prescribed by the regulations.
Drafting note: To address potential duplicity of offences that could result in double jeopardy, it is intended that jurisdictions will prescribe overlapping offences that may be committed contemporaneously as a result of a driver driving while impaired by fatigue, e.g. dangerous driving offences or employee offences under workplace safety legislation.
29 Duty on parties in the chain of responsibility to prevent driver fatigue
(1) A party in the chain of responsibility in relation to a regulated heavy vehicle must take all reasonable steps to ensure that a person does not drive the vehicle on a road while the person is impaired by fatigue.
Penalty: the penalty for a critical risk offence.
Note 1: Section 12 explains who are parties in the chain of responsibility.
Note 2: Section 23 explains what reasonable steps are.
Note 3: Section 106 explains how an offence is specified as a critical risk offence. Section 110 sets out the penalties for critical risk offences.
(2) An offence against subsection (1) is an offence of absolute liability.
(3) For subsection (1) evidence that a party is complying with a prescribed fatigue duty under another law is evidence that the party had taken all reasonable steps in relation to the offence.
(4) A prescribed fatigue duty under another law means a duty under another law of this jurisdiction or of another participating jurisdiction prescribed by the regulations and, in the case of an operator, includes the requirements of a BFM or AFM accreditation.
Drafting note: This provision enables implementing jurisdictions to recognise fatigue management obligations under other legislative regimes directed toward the management of fatigue risks, e.g. workplace safety laws, as evidence of reasonable steps in relation to this duty.
Division 2.3—Additional duties on certain parties in the chain of responsibility
30 Duties on employers, prime contractors and operators
(1) This section applies to:
(a) the employer of an employed driver of a regulated heavy vehicle; and
(b) the prime contractor of a self‑employed driver of a regulated heavy vehicle; and
(c) the operator of the regulated heavy vehicle if the driver is to make a journey for the operator.
(2) The employer, prime contractor and operator each must take all reasonable steps to ensure that the schedule for the driver will not cause or permit the driver to:
(a) drive while impaired by fatigue; or
(b) drive while in breach of his or her work/rest hours option; or
(c) drive in breach of another law to avoid driving while impaired by fatigue or while in breach of his or her work/rest hours option.
Penalty: the penalty for a severe risk offence.
Note 1: Section 23 explains what reasonable steps are.
Note 2: Section 27 explains what impaired by fatigue means.
Note 3: Section 35 explains what a work/rest hours option is.
Note 4: Section 106 explains how an offence is specified as a severe risk offence. Section 110 sets out the penalties for severe risk offences.
(3) The employer must not cause or permit the driver to drive the vehicle unless:
(a) the employer has complied with subsection (2); and
(b) the employer, after making reasonable inquiries, is satisfied that the scheduler has complied with section 31.
Penalty: the penalty for a substantial risk offence.
Note: Section 106 explains how an offence is specified as a substantial risk offence. Section 110 sets out the penalties for substantial risk offences.
(4) The prime contractor and operator each must not cause or permit the driver to drive the vehicle, or enter into a contract or agreement with the driver to that effect, unless:
(a) the prime contractor or operator has complied with subsection (2); and
(b) the prime contractor or operator, after making reasonable inquiries, is satisfied that the scheduler has complied with section 31.
Penalty: the penalty for a substantial risk offence.
Note: Section 106 explains how an offence is specified as a substantial risk offence. Section 110 sets out the penalties for substantial risk offences.
(5) An offence against subsection (2), (3) or (4) is an offence of absolute liability.
31 Duties on schedulers
(1) This section applies to the scheduler of:
(a) a regulated heavy vehicle; or
(b) a driver of a regulated heavy vehicle.
(2) The scheduler must take all reasonable steps to ensure that a driver’s schedule for driving the vehicle will not cause or permit the driver to:
(a) drive while impaired by fatigue; or
(b) drive while in breach of his or her work/rest hours option; or
(c) drive in breach of another law to avoid driving while impaired by fatigue or while in breach of his or her work/rest hours option.
Penalty: the penalty for a severe risk offence.
Note 1: Section 23 explains what reasonable steps are.
Note 2: Section 27 explains what impaired by fatigue means.
Note 3: Section 36 explains what a work/rest hours option is.
Note 4: Section 106 explains how an offence is specified as a severe risk offence. Section 110 sets out the penalties for severe risk offences.
(3) The scheduler must not cause or permit the driver to drive the vehicle unless:
(a) the scheduler has complied with subsection (2); and
(b) the driver’s schedule for driving the vehicle allows for:
(i) the driver to take rest breaks in accordance with his or her work/rest hours option; and
Example of ways to take rest breaks
• ensuring that a driver is able to take a short rest break at a suitable location
• ensuring that a driver is able to take a long rest break at a location where facilities that enable adequate rest to be taken are available
(ii) traffic conditions and other delays that could reasonably be expected.
Examples of traffic conditions and other delays that could reasonably be expected
• the actual average speed able to be travelled lawfully and safely by the driver on the route in question
• known traffic conditions such as road works or traffic congestion on the route in question
• delays caused by loading, unloading or queuing
Penalty: the penalty for a substantial risk offence.
Note: Section 106 explains how an offence is specified as a substantial risk offence. Section 110 sets out the penalties for substantial risk offences.
(4) An offence against subsection (2) or (3) is an offence of absolute liability.
32 Duties on consignors and consignees
(1) This section applies to:
(a) the consignor of goods for transport by a regulated heavy vehicle; and
(b) the consignee of goods for transport by a regulated heavy vehicle.
(2) The consignor and consignee each must take all reasonable steps to ensure that the terms of consignment (e.g. delivery times) will not result in, encourage or provide an incentive to the driver to:
(a) drive while impaired by fatigue; or
(b) drive while in breach of his or her work/rest hours option; or
(c) drive in breach of another law to avoid driving while impaired by fatigue or while in breach of his or her work/rest hours option.
Penalty: the penalty for a severe risk offence.
Note 1: Section 23 explains what reasonable steps are.
Note 2: Section 27 explains what impaired by fatigue means.
Note 3: Section 36 explains what a work/rest hours option is.
Note 4: Section 106 explains how an offence is specified as a severe risk offence. Section 110 sets out the penalties for severe risk offences.
(3) The consignor and consignee each must take all reasonable steps to ensure that the terms of consignment (e.g. delivery times) will not result in, encourage or provide an incentive to the employer of an employed driver, prime contractor of a self‑employed driver or operator of the regulated heavy vehicle to cause or permit the driver to:
(a) drive while impaired by fatigue; or
(b) drive while in breach of his or her work/rest hours option; or
(c) drive in breach of another law to avoid driving while impaired by fatigue or while in breach of his or her work/rest hours option.
Penalty: the penalty for a severe risk offence.
Note 1: Section 23 explains what reasonable steps are.
Note 2: Section 27 explains what impaired by fatigue means.
Note 3: Section 36 explains what a work/rest hours option is.
Note 4: Section 106 explains how an offence is specified as a severe risk offence. Section 110 sets out the penalties for severe risk offences.
(4) The consignor and consignee each must not cause or permit the driver to drive the vehicle, or enter into a contract or agreement to that effect, unless:
(a) the consignor or consignee has complied with subsection (2) and (3); and
(b) in the case of an employed driver—the consignor or consignee, after making reasonable inquiries, is satisfied that:
(i) the driver’s employer and the operator of the driver’s vehicle have each complied with section 30; and
(ii) the scheduler has complied with section 31; and
(c) in the case of a self‑employed driver—the consignor or consignee, after making reasonable inquiries, is satisfied that:
(i) if the driver has a prime contractor—the prime contractor of the driver has complied with section 30; and
(ii) the scheduler has complied with section 31.
Penalty: the penalty for a substantial risk offence.
Note 4: Section 106 explains how an offence is specified as a substantial risk offence. Section 110 sets out the penalties for substantial risk offences.
(5) An offence against subsection (2), (3) or (4) is an offence of absolute liability.
33 Duties on loading managers
(1) This section applies to loading managers of goods for transport by a regulated heavy vehicle.
(2) The loading manager must take all reasonable steps to ensure that the arrangements for loading and unloading the vehicles will not cause, or contribute to causing, a driver of a regulated heavy vehicle to:
(a) drive while impaired by fatigue; or
(b) drive while in breach of his or her work/rest hours option; or
(c) drive in breach of another law to avoid driving while impaired by fatigue or while in breach of his or her work/rest hours option.
Penalty: the penalty for a severe risk offence.
Examples of reasonable steps to comply with subsection (2)
• providing for rest to be taken with adequate facilities
• providing for the reporting of travel delays and providing a mechanism for managing late arrivals
• allowing loading and unloading to occur at an agreed time
• having a system of setting and allocating loading and unloading times that a driver can reasonably rely on to comply with the work and rest times specified in this Act
Note 1: Section 23 explains what reasonable steps are.
Note 2: Section 27 explains what impaired by fatigue means.
Note 3: Section 36 explains what a work/rest hours option is.
Note 4: Section 106 explains how an offence is specified as a severe risk offence. Section 110 sets out the penalties for severe risk offences.
(3) If the loading manager or a person acting under his or her supervision or control:
(a) nominates a time for loading or unloading a vehicle and that time is exceeded by more than 30 minutes; or
(b) is unable to nominate a time for loading or unloading the vehicle;
the loading manager must take all reasonable steps to ensure that the driver is able to take rest while waiting for the vehicle to be loaded or unloaded.
Example of reasonable steps that may be taken to ensure a driver is able to take rest
Providing a system of notifying the driver when his or her vehicle can be loaded or unloaded that does not require the driver to be awake or unreasonably alert.
Penalty: the penalty for a substantial risk offence.
Note 1: Section 23 explains what reasonable steps are.
Note 2: Section 27 explains what impaired by fatigue means.
Note 3: Section 36 explains what a work/rest hours option is.
Note 4: Section 106 explains how an offence is specified as a substantial risk offence. Section 110 sets out the penalties for substantial risk offences.
(2) An offence against subsection (2) or (3) is an offence of absolute liability.
Division 2.4—Certain requests, contracts etc prohibited
34 Certain requests etc prohibited
A person must not ask, direct or require (directly or indirectly) a driver or a party in the chain of responsibility to do something that the person knows, or reasonably ought to know, would have the effect of causing or permitting the driver to:
(a) drive while impaired by fatigue; or
(b) drive while in breach of his or her work/rest hours option; or
(c) drive in breach of another law to avoid driving while impaired by fatigue or while in breach of his or her work/rest hours option.
Example of a requirement that contravenes this section
A requirement that the driver complete a journey in a time that the person knows or reasonably ought to know cannot be complied with unless the driver commits a speeding offence or does not take all the rest breaks that he or she is required to take.
Penalty: the penalty for a critical risk offence.
Note 1: Section 27 explains what impaired by fatigue means.
Note 2: Section 36 explains what a work/rest hours option is.
Note 3: Section 106 explains how an offence is specified as a critical risk offence. Section 110 sets out the penalties for critical risk offences.
35 Certain contracts etc prohibited
(1) A person must not enter into a contract or agreement with a driver or with a party in the chain of responsibility that the person knows, or reasonably ought to know, would have the effect of causing or permitting a driver to:
(a) drive while impaired by fatigue; or
(b) drive while in breach of his or her work/rest hours option; or
(c) drive in breach of another law to avoid driving while impaired by fatigue or while in breach of his or her work/rest hours option.
Penalty: the penalty for a critical risk offence.
Note 1: Section 27 explains what impaired by fatigue means.
Note 2: Section 36 explains what a work/rest hours option is.
Note 3: Section 106 explains how an offence is specified as a critical risk offence. Section 110 sets out the penalties for critical risk offences.
(2) A person must not enter into a contract or agreement with a driver or with a party in the chain of responsibility that the person knows, or reasonably ought to know, would encourage or provide an incentive for a party in the chain of responsibility to cause or permit a driver to:
(a) drive while impaired by fatigue; or
(b) drive while in breach of his or her work/rest hours option; or
(c) drive in breach of another law to avoid driving while impaired by fatigue or while in breach of his or her work/rest hours option.
Penalty: the penalty for a critical risk offence.
Note 1: Section 27 explains what impaired by fatigue means.
Note 2: Section 36 explains what a work/rest hours option is.
Note 3: Section 106 explains how an offence is specified as a critical risk offence. Section 110 sets out the penalties for critical risk offences.
Part 3—Duties relating to work and rest times
Division 3.1—Key concepts for this Part
Subdivision 3.1.1—Work and rest time
36 What is work/rest hours option
A work/rest hours option sets out the maximum work time and minimum rest time that a driver must have and includes:
(a) standard hours; and
(b) BFM hours; and
(c) AFM hours.
Note: Section 43 explains what standard hours are. Section 48 explains what BFM hours are. Section 52 explains what AFM hours are.
37 What is work time
(1) A driver’s work time is:
(a) the time that the driver spends driving a regulated heavy vehicle, whether or not it is on a road; and
(b) any other time that the driver spends doing tasks that are related to the operation of a regulated heavy vehicle, including for example:
(i) loading or unloading the vehicle; and
(ii) inspecting, servicing or repairing the vehicle; and
(iii) inspecting or attending to the load on the vehicle; and
(iv) attending to the passengers of a bus; and
(v) cleaning or refuelling the vehicle; and
(vi) performing marketing tasks in relation to the operation of the vehicle; and
(vii) helping with, or supervising, an activity mentioned in subparagraphs (i) to (vi); and
(viii) recording information, or completing a document, in accordance with this Act or otherwise, in relation to the operation of the vehicle.
(2) For subparagraph (1)(b)(vi), marketing tasks includes:
(a) arranging for the transport of passengers or goods; and
(b) canvassing for orders for the transport of passengers or goods.
38 What is rest time
Rest time of a driver is time that is not work time of the driver.
39 What is a work/rest change
A work/rest change for a driver is:
(a) a change from work time to rest time; or
(b) a change from rest time to work time; or
(c) a change from being a solo driver to being a two‑up driver; or
(d) a change from being a two‑up driver to being a solo driver.
Subdivision 3.1.2—Counting time
40 Counting time, including work and rest time
(1) A period of work time of less than 15 minutes counts as 15 minutes work time.
Examples
• A period of working for 14 minutes counts as 15 minutes work time.
• A period of working for 17 minutes counts as 30 minutes work time.
• A period of working for 53 minutes counts as 1 hour work time.
(2) A period of rest time is counted in blocks of time of no less than 15 minutes.
Examples
• A period of not working for only 14 minutes does not count as rest time (because 14 minutes is less than 15 minutes).
• A period of not working for 17 minutes counts as 15 minutes rest time (because 17 minutes is more than 15 minutes, but is less than 2 lots of 15 minutes i.e. 30 minutes).
• A period of not working for 53 minutes counts as 45 minutes rest time (because 53 minutes is more than 3 lots of 15 minutes i.e. 45 minutes, but is less than 4 lots of 15 minutes i.e. 60 minutes).
(3) When counting time in a period, the time must not be counted from within rest time, but instead must be counted forward from the end of a major rest break.
Example: A driver completes a 7 hour continuous rest break at 7 am. If the driver is subsequently intercepted by an authorised officer or police officer at 5 pm while the driver is on work time, the officer must calculate the driver’s work and rest times for that day counting forward from 7 am, which was the end of the driver’s last major rest break.
(4) If a driver undertakes a journey and is in a different time zone from the time zone of his or her base at the time when a period of time is relevant for the purposes of this Act, the period must be counted by reference to the time zone of the base.
Example: If it is necessary to determine the night hours of a driver with a base in Western Australia while the driver is in New South Wales on a journey, those night hours are the period between 12 midnight and 6 am in the Western Australian time zone in which the driver’s base is situated (even though those hours equate, for instance, to 3 am to 9 am Eastern Standard Summer Savings Time).
41 Counting time within the participating zone
In applying this Part to a driver, any time that is spent by the driver in another jurisdiction within the participating zone is to be treated in the same way as it would have been treated if the time had been spent in this jurisdiction.
Note: Section 22(4) explains what the participating zone is.
42 Counting time from outside the participating zone
(1) This section applies to a driver if the driver drives a regulated heavy vehicle into this jurisdiction from another jurisdiction within the non‑participating zone.
Note: Section 22(5) explains what the non‑participating zone is.
(2) If, within the last 7 days, the driver has spent any work time inside the participating zone, any time spent by the driver in the other jurisdiction within the non‑participating zone is to be treated in the same way as it would have been treated if the time had been spent in this jurisdiction.
(4) The Panel may hold a meeting to consider or decide those matters.
(5) The Panel may only decide a matter at a meeting if a majority of its members are participating in the meeting either:
(a) as described in subsection (6); or
(b) by casting a written vote as permitted by subsection (8).
(6) A member of the Panel may participate in a meeting:
(a) by attending the meeting in person; or
(b) by another means of communication, including for example, by phone or internet conferencing.
(7) Each member of the Panel may cast 1 vote on a matter to be decided by the Panel.
(8) A member may cast his or her vote by a written vote received by the Panel:
(a) before a decision is taken on the matter at a meeting; or
(b) at that meeting.
(9) The decision of the Panel on a matter is to be the majority of votes on the matter.
(10) However, if a vote is tied, the question being voted on fails.
(11) The Panel may invite a person to a meeting to advise, inform, or make a submission to, the Panel.
(12) The following persons may attend a meeting of the Panel to observe, or make a submission to, the Panel:
(a) an authority of a non‑participating jurisdiction that performs functions and exercises powers under a law of that jurisdiction about heavy vehicle driver fatigue; and
(b) the National Transport Commission; and
(c) any other authority or agency agreed to or invited by the Panel.
(13) The regulations may make further provision about:
(a) the functions and procedures of the Panel; and
(b) determining what is, or is not, to be treated as a corresponding provision of a corresponding fatigue law.
Division 7.3—Referral and mutual recognition of decisions
115 Referral of matters to the Panel and other Authorities
(1) This section applies if:
(a) the Authority proposes to make a decision that may, or is intended to, have application in:
(i) another participating jurisdiction; or
(ii) more than 1 other participating jurisdiction; and
(b) the decision relates to:
(i) the grant of an AFM accreditation or an exemption; or
(ii) the variation, suspension or cancellation of a BFM accreditation, AFM accreditation or an exemption, if the original grant of the accreditation or exemption was made by a corresponding Authority; or
(iii) any other matter prescribed by the regulations.
(2) The Authority must inform the Panel of the proposed decision.
(3) The Panel may make a recommendation to the Authority about the proposed decision.
(4) If the Panel gives the Authority written notice of the recommendation and the reasons for the recommendation, the Authority must take note of the recommendations of the Panel when making the decision.
(5) The Authority may refer any other matter under this Act to the Panel for consideration.
116 Mutual recognition of certain decisions
(1)This section applies to a decision of a corresponding Authority that is in force, and was made:
(a) under a provision of a corresponding fatigue law that corresponds to a provision of the following sections:
(i) section 73 (Issue of written work diaries); or
(ii) section 74 (Approval of electronic work diaries); or
(iii) section 79 (Granting BFM accreditation); or
(iv) a section prescribed by the regulations; or
(b) about the variation or cancellation of the approval of an electronic work diary; or
(c) about the variation, suspension or cancellation of a BFM accreditation, AFM accreditation or exemption that was originally granted by the corresponding Authority; or
(d) acting in accordance with a recommendation of the Panel, about the variation, suspension or cancellation of a BFM accreditation, AFM accreditation or exemption.
(2) Except for circumstances that do not exist in this jurisdiction, the decision has effect in this jurisdiction as if it were a decision made by the Authority.
(3) The regulations may make further provision about mutual recognition of decisions made in another participating jurisdiction.
117 Mutual recognition of other decisions
(1) This section applies to:
(a) a decision of a corresponding Authority to which section 116 does not apply that is in force in the other jurisdiction; or
(b) a recommendation of the Panel in accordance with section 115.
(2) Except for circumstances that do not exist in this jurisdiction, the Authority may decide whether the decision or recommendation is to have effect in this jurisdiction as if it were a decision made by the Authority.
(3) A decision by the Authority under subsection (2) must be made in writing and is subject to any variations or conditions specified by the Authority.
Division 7.4—Notification and recording of decisions
118 Notifying other Authorities of decisions
(1) This section applies if the Authority makes a decision about:
(a) the grant, variation, suspension or cancellation of a BFM accreditation, AFM accreditation or exemption; or
(b) the approval, variation of an approval, or cancellation of an approval, of an electronic work diary.
(2) The Authority must give written notice of the decision to every corresponding Authority in the participating zone.
(3) If the Authority decides not to follow a recommendation of the Panel, or decides to apply a recommendation of the Panel subject to variations or conditions, the Authority must give written notice of the reasons for its decision to every corresponding Authority in the participating zone.
119 Register of decisions
(1) The Authority must keep a register of decisions currently in force in this jurisdiction if the decision:
(a) was made by the Authority under this Act; or
(b) has effect in this jurisdiction under section 116 and the Authority has received written notice of that decision under section 118; or
(c) has effect in this jurisdiction under section 117.
(2) The Authority must record the cancellation or variation of any recorded decision in the register.
(3) The regulations may make further provision about the recording of decisions.
Division 7.5—Reconsideration and review of decisions
120 Decisions that may be reconsidered and reviewed
The following decisions of the Authority are decisions to which this Part applies:
| Item | Section under which decision made | Brief description of decision |
| 1 | 79 | decision not to grant BFM accreditation |
| 2 | 79, 84 or 94 | decision to give an accreditation or exemption for less than 3 years or the period sought by the applicant |
| 3 | 80 | decision to give a BFM accreditation subject to a condition (other than a statutory condition) not sought by the applicant |
| 4 | 84 | decision not to grant AFM accreditation |
| 5 | 85 | decision to give a AFM accreditation subject to a condition (other than a statutory condition) not sought by the applicant |
| 6 | 94 | decision not to give a work diary exemption |
| 7 | 94 | decision not to give a work/rest hours exemption (or not to give the exemption for an employed driver sought to be covered by the exemption) |
| 8 | 94 | decision to give an exemption subject to a condition not sought by the applicant |
| 9 | 95 | decision not to vary or cancel an accreditation or exemption on application |
| 10 | 98 | decision to vary or cancel an accreditation or exemption except on application. |
| 11 | 102 | decision not to give a replacement accreditation certificate or exemption |
121 Reconsideration of decisions
(1) A person affected by a decision to which this Part applies (an initial decision) may ask the Authority in writing to reconsider the decision.
(2) The request must be made within:
(a) 28 days after the person, or someone else affected by the decision, was told of the initial decision, and given reasons for the decision, by the Authority; or
(b) any longer period allowed by the Authority.
(3) The request must state the decision sought by the person and outline why the decision should be made.
(4) The Authority must reconsider the initial decision and:
(a) confirm the decision; or
(b) vary the decision; or
(c) set the decision aside and substitute a new decision.
(5) If the decision was made in accordance with a recommendation of the Panel or another Authority, the Authority must inform the Panel or other Authority of the decision that the Authority proposes to make.
(6) The Panel or other Authority may make a recommendation to the Authority about the proposed decision.
(7) The Panel or other Authority must give the Authority written notice of the recommendation and the reasons for the recommendation within 21 days after being informed of the proposed decision.
(8) The Authority must take note of the recommendations of the Panel or other Authority when making the decision.
(9) Within 28 days after receiving the request, the Authority must give the person a written notice that states:
(a) the result of the reconsideration; and
(b) if the Authority does not make the decision sought by the person—the reasons for the reconsidered decision.
(10) The regulations may make further provision about the reconsideration of decisions.
122 Review of decisions by <relevant jurisdiction tribunal or court>
<Local provisions>
Drafting note: Administrative review procedures before a competent tribunal or court may already be provided in jurisdiction legislation.
Part 8—Miscellaneous
Division 8.1—Transitional provisions
123 TFMS applications
(1) This section applies if, immediately before the commencement of this section:
(a) the Authority had an application for TFMS registration from a driver or employer; and
(b) the Authority had not yet decided the application.
(2) The application is taken to have been withdrawn.
124 TFMS to BFM
(1) This section applies if, immediately before the commencement of this section:
(a) a driver was registered as a participant in TFMS or a corresponding TFMS; and
(b) the Authority had an application for BFM accreditation from an operator; and
(c) the Authority had not yet decided the application.
(2) Until the Authority decides the application, the driver may drive for the operator according to BFM hours.
Note: BFM hours are set out in Division 3.3 (BFM hours).
(3) If the Authority refuses to grant the application, the driver may drive for the operator according to standard hours.
(4) If the Authority grants the application, the driver may continue to drive for the operator according to BFM hours.
125 TFMS to AFM
(1) This section applies if, immediately before the commencement of this section:
(a) a driver was registered as a participant in TFMS or a corresponding TFMS; and
(b) the Authority had an application for AFM accreditation from an operator; and
(c) the Authority had not yet decided the application.
(2) Until the Authority decides the application, the driver may drive for the operator according to BFM hours (not AFM hours).
Note: BFM hours and AFM hours are set out in Division 3.3 (BFM hours) and Division 3.4 (AFM hours).
(3) If the Authority refuses to grant the application, the driver may drive for the operator according to standard hours.
(4) If the Authority grants the application, the driver may drive for the operator according to the AFM hours.
126 TFMS otherwise lapses
Subject to sections 124 and 125, TFMS lapses after the commencement of this Act.
127 Applications for reconsideration by Authority
(1) This section applies if, immediately before the commencement of this section:
(a) the Authority had an application for reconsideration of a decision; and
(b) the Authority had not yet decided the application.
(2) The Authority may decide the application as if this Act had not commenced.
128 Applications for review by <relevant jurisdiction tribunal or court>
(1) This section applies if, immediately before the commencement of this section:
(a) the <relevant jurisdiction tribunal or court> had an application for review of a decision made in this jurisdiction; and
(b) the <relevant jurisdiction tribunal or court>had not yet decided the application.
(2) The <relevant jurisdiction tribunal or court> may decide the application as if this Act had not commenced.
129 Exemption applications
(1) This section applies if, immediately before the commencement of this section:
(a) the Authority had:
(i) an application for a limited driving hours exemption or logbook exemption; or
(ii) an application for variation or cancellation of a limited driving hours exemption or logbook exemption; and
(b) the Authority had not yet decided the application.
(2) The application is taken to have been made, and may be decided, under this Act.
130 Existing exemptions continue
(1) This section applies if, immediately before the commencement of this section, a limited driving hours exemption or logbook exemption applied to a person under the old Regulations.
(2) The exemption is taken to have been made under this Act.
(3) The exemption continues to apply:
(a) for the period stated in the exemption; or
(b) if the exemption does not state a period, for 3 years after the exemption took effect.
131 Prosecution of offences that are undecided
(1) This section applies if:
(a) before the commencement of this section, a person had committed an offence against the old Regulations; and
(b) immediately before the commencement of this section, the person:
(i) had not been charged with the offence; or
(ii) had been charged with the offence, but the charge had not been decided.
(2) The person may be prosecuted, or continue to be prosecuted, for the offence as if this Act had not commenced.
132 Existing logbooks
(1) A logbook issued under the old Regulations may continue to be used by a driver working under standard hours for 90 days after the commencement of this section as if Part 4 of the old Regulations continued to apply.
(2) A driver cannot work under BFM or AFM hours unless he or she has surrendered his or her logbook and has obtained a work diary.
133 Repeal
The <insert name of jurisdiction legislation implementing the model legislation set out in Schedule 1 of the National Transport Commission (Road Transport Legislation – Driving Hours Regulations) Regulations 2006> is repealed.
Division 8.2—Regulations
134 Regulations
(1) The <insert appropriate authority> may make regulations prescribing matters:
(a) required or permitted to be prescribed by this Act; or
(b) necessary or convenient to be prescribed for giving effect to this Act.
(2) The regulations may incorporate or adopt by reference, with or without modifications, provisions of other legislation or other documents.
(3) The regulations may create offences and specify the maximum pecuniary penalty that may be imposed in relation to the offences.
(4) The maximum penalty that may be specified in the regulations in relation to an offence against the regulations must not exceed:
(a) $10 000 for an individual or $50 000 for a corporation; and
(b) in the case of an offence committed by a driver—4 demerit points.
Dictionary
Note: The definition for several terms that are used in this Act are set out in the C & E Act, including associate, authorised officer, Australian road law, Authority, combination, driver licence, GVM, motor vehicle, police officer, road, road‑related area, road law and transport documentation.
100 km work—see section 54(1).
100+ km work—see section 54(2).
ADR 42 means the national standard described as ADR 42 as in force from time to time under the Motor Vehicle Standards Act 1989 of the Commonwealth.
AFM accreditation means an accreditation granted under section 84, or a corresponding fatigue law, that is in force.
AFM fatigue management proposal—see section 83(3).
AFM fatigue management system—see section 83(4).
AFM hours—see section 52.
AFM outer limits—see section 84(10).
AFM standards and business rules means the standards and business rules for AFM prescribed in the regulations.
another jurisdiction—see section 22(2).
approved sleeper berth means:
(a) for a heavy truck—a driver’s sleeper berth that complies with ADR 42 or with a standard for sleeper berths that is prescribed in the regulations and is able to be used by the driver when taking rest; or
(b) for a bus—a driver’s sleeper berth that complies with a standard for sleeper berths that is prescribed in the regulations and is able to be used by the driver when taking rest.
base—see section 55(1).
BFM accreditation means an accreditation granted under section 79, or a corresponding fatigue law, that is in force.
BFM fatigue management system—see section 78(3).
BFM hours—see section 48.
BFM hours for a solo driver of a regulated heavy vehicle—see section 49.
BFM hours for a two‑up driver of a regulated heavy vehicle—see section 51.
BFM standards and business rules means the standards and business rules for BFM prescribed in the regulations.
body of fatigue knowledge—see section 26(5).
bus—see section 10(3).
business day means a day that is not a Saturday, Sunday or public holiday in this jurisdiction.
C & E Act means <insert name of the jurisdiction legislation implementing the model legislation set out in Schedule 1 of the National Transport Commission (Road Transport Legislation—Compliance and Enforcement Bill) Regulations 2006 of the Commonwealth>.
cause of fatigue—see section 26(3).
consignee—see section 18.
consignor—see section 17.
corresponding Authority means:
(a) a person prescribed by the regulations as the corresponding Authority for another jurisdiction for this Act; or
(b) in any other jurisdiction—the Authority as defined in a corresponding fatigue law.
corresponding fatigue law, for this Act or a provision of this Act, means:
(a) a law in force in another jurisdiction corresponding to this Act or a provision of this Act; or
(b) a law of another jurisdiction that is declared under the regulations to be a corresponding fatigue law, whether or not the law corresponds, or substantially corresponds, to this Act.
court‑imposed penalty—see section 110(3).
critical risk offence—see section 106.
decision—see section 112.
driver—see section 11(1).
duplicate daily sheet means the duplicate of a daily sheet in a work diary or corresponding work diary.
electronic work diary—see section 55(5).
employed driver—see section 11(2).
employer—see section 13.
entry—see section 63.
exemption—see section 90.
fatigue—see section 26.
Fatigue Authorities Panel—see section 114.
Gazette means the <insert name of jurisdiction Gazette>.
heavy truck—see section 10(2).
IAP Act means <insert name of jurisdiction legislation implementing the model legislation set out in Schedule 1 of the National Transport Commission (Model Legislation—Intelligent Access Program) Regulations 2006 of the Commonwealth>.
impaired by fatigue—see section 27.
infringement notice penalty—see section 110(4).
loader—see section 20.
loading manager—see section 19.
long/night work time means any work time:
(a) in excess of 12 hours in a 24 hour period; or
(b) between 12 midnight and 6 am (or the equivalent hours in the time zone of the base of a driver who is on a journey in a regulated heavy vehicle).
Examples
• A period of working for 141 minutes between 12 midnight and 3 am counts as 2½ hours of long/night work time.
• A period of working for 53 minutes in excess of 12 hours in a 24 hour period counts as 1 hour of long/night work time.
Note: See section 40 for the way that work time is counted.
malfunction of an electronic work diary or an odometer means:
(a) the diary or odometer ceases to work at all, or works only intermittently; or
(b) it does not perform 1 or more functions required under this Act; or
(c) it performs those functions only intermittently; or
(d) it performs those functions in a way that is inaccurate or unreliable (including intermittently inaccurate or unreliable).
Examples of an electronic work diary malfunctioning
• the data held in an electronic work diary is corrupted
• a software program fault
• physical damage that impairs the functioning of the electronic work diary
Examples of an odometer malfunctioning
the odometer no longer keeps an accurate record of distance travelled
managing—see section 23(2).
major rest break means a rest break of at least 5 continuous hours.
Minister means the Minister who is administering this Act.
minor risk offence—see section 106.
night rest break means:
(a) 7 continuous hours stationary rest time taken between 10 pm on a day and 8 am on the next day, using the time zone of the base of the driver; or
(b) 24 continuous hours stationary rest time.
nominee—see section 92(4).
non‑participating zone—see section 22(5).
old Regulations means the Regulations repealed by this Act.
operator—see section 15.
participating jurisdiction—see section 22(3).
participating zone—see section 22(4).
parties in the chain of responsibility—see section 12.
penalty—see section 110(2).
prescribed bus accreditation means an accreditation granted under an accreditation scheme for buses prescribed by the regulations that is in force.
prescribed driver offence under another law—see section 28(5).
prescribed fatigue duty under another law—see section 29(4).
prime contractor—see section 14.
reasonable steps—see section 23.
reasonable steps defence—see section 24.
record keeper—see section 62(2).
record location—see section 55(2).
regulated heavy vehicle—see section 10(1).
reset rest break—see section 53(8).
rest time—see section 38.
scheduler—see section 16.
self‑employed driver—see section 11(3).
severe risk offence—see section 106.
sign of fatigue—see section 26(4).
solo driver means a driver who is not a party to a two‑up driving arrangement.
split rest break—see section 50.
standard hours—see section 43.
standard hours for the solo driver of a regulated heavy vehicle—see section 44.
standard hours for the solo driver of a bus—see section 45.
standard hours for a two‑up driver—see section 46.
stationary rest time means rest time that a driver spends:
(a) out of a regulated heavy vehicle; or
(b) in an approved sleeper berth of a stationary regulated heavy vehicle.
substantial risk offence—see section 106.
suitable rest place—see section 47(3).
supplementary record—see section 59(2).
tampers—see section 71(4).
TFMS means the Transitional Fatigue Management Scheme established under the old Regulations.
this jurisdiction—see section 22(1).
two‑up driver means the driver of a regulated heavy vehicle who is a party to a two‑up driving arrangement.
two‑up driving arrangement means an arrangement under which 2 drivers share the driving of a regulated heavy vehicle that has an approved sleeper berth.
unloader—see section 21.
variation of an accreditation or exemption—see sections 77(2)(b) or 90(2)(b).
work diary—see section 56(3).
work diary exemption—see section 92.
work record—see section 63.
work/rest change—see section 39.
work/rest hours exemption—see section 91.
work/rest hours option—see section 36.
work time—see section 37.
written work diary—see section 56(4).
Endnotes
Endnote 1—About the endnotes
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Abbreviation key—Endnote 2
The abbreviation key sets out abbreviations that may be used in the endnotes.
Legislation history and amendment history—Endnotes 3 and 4
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.
Editorial changes
The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.
If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.
Misdescribed amendments
A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.
If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.
Endnote 2—Abbreviation key
| ad = added or inserted | o = order(s) |
| am = amended | Ord = Ordinance |
| amdt = amendment | orig = original |
| c = clause(s) | par = paragraph(s)/subparagraph(s) |
| C[x] = Compilation No. x | /sub‑subparagraph(s) |
| Ch = Chapter(s) | pres = present |
| def = definition(s) | prev = previous |
| Dict = Dictionary | (prev…) = previously |
| disallowed = disallowed by Parliament | Pt = Part(s) |
| Div = Division(s) | r = regulation(s)/rule(s) |
| ed = editorial change | reloc = relocated |
| exp = expires/expired or ceases/ceased to have | renum = renumbered |
| effect | rep = repealed |
| F = Federal Register of Legislation | rs = repealed and substituted |
| gaz = gazette | s = section(s)/subsection(s) |
| LA = Legislation Act 2003 | Sch = Schedule(s) |
| LIA = Legislative Instruments Act 2003 | Sdiv = Subdivision(s) |
| (md) = misdescribed amendment can be given | SLI = Select Legislative Instrument |
| effect | SR = Statutory Rules |
| (md not incorp) = misdescribed amendment | Sub‑Ch = Sub‑Chapter(s) |
| cannot be given effect | SubPt = Subpart(s) |
| mod = modified/modification | underlining = whole or part not |
| No. = Number(s) | commenced or to be commenced |
Endnote 3—Legislation history
| Name | Registration | Commencement | Application, saving and transitional provisions |
| National Transport Commission (Model Legislation—Heavy Vehicle Driver Fatigue) Regulations 2007 (SLI No. 318, 2007) | 5 Oct 2007 (F2007L03869) | 6 Oct 2007 (r 2) | |
| Acts and Instruments (Framework Reform) (Consequential Amendments) Regulation 2016 | 29 Feb 2016 (F2016L00170) | Sch 1 (item 41): 5 Mar 2016 (s 2(1) item 1) | — |
Endnote 4—Amendment history
| Provision affected | How affected |
| r 3............................................. | am F2016L00170 |
| Schedule 1 | |
| s 21............................................ | ed C1 |
Endnote 5—Editorial changes
In preparing this compilation for registration, the following kinds of editorial change(s) were made under the Legislation Act 2003.
Drafting note in section 21 of Schedule 1
Kind of editorial change
Corrects typographical error
Details of editorial change
The drafting note at the end of section 21 of Schedule 1 includes the term “exactlythe”.
This compilation was editorially changed to insert a space in between the two words to correct this typographical error.
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