Road Transport (General) Amendment (Heavy Vehicle Driver Fatigue and Speeding Compliance) Regulation 2008 (NSW)
2008 No 429
New South Wales
Road Transport (General) Amendment
(Heavy Vehicle Driver Fatigue and
Speeding Compliance) Regulation
2008
under the
Road Transport (General) Act 2005
Her Excellency the Governor, with the advice of the Executive Council, has made the following Regulation under the Road Transport (General) Act 2005.
MICHAEL DALEY, M.P.,
Minister for Roads
Explanatory note
The object of this Regulation is to amend the Road Transport (General) Regulation 2005 to put in place measures with respect to the prevention and management of driver fatigue, and speeding compliance, in relation to heavy vehicles and heavy combinations.
The National Transport Commission has prepared, and the Australian Transport Council has approved, model legislation for adoption by the States and Territories of Australia relating to heavy vehicle driver fatigue and heavy vehicle speeding compliance.
This Regulation inserts two new Parts, Part 6 (Heavy vehicle driver fatigue) and Part 7 (Heavy vehicle speeding compliance) into the Road Transport (General) Regulation 2005 to substantially give effect to that model legislation.
New Part 6 contains provisions that deal with the following matters:
| (a) | the duties of certain persons to avoid and prevent heavy vehicle driver fatigue (Division 2), |
| (b) | the regulation of work time and rest time for drivers of heavy vehicles, whether under a standard hours, Basic Fatigue Management (BFM) or Advanced Fatigue Management (AFM) regime (Division 3), |
| (c) | the keeping of driving records, including written and electronic work diaries, (Division 4), |
| (d) | the granting of BFM and AFM accreditation and of exemptions from certain requirements of the new Part (Division 5), |
| (e) | decision making in relation to the heavy vehicle driver fatigue regime, including referral and interstate mutual recognition of decisions and review and reconsideration of decisions (Division 6), |
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| (f) | other minor, consequential and ancillary matters (Divisions 1 and 7). |
New Part 7 contains provisions that deal with the following matters:
| (a) | specific duties of certain persons to ensure that a driver of a heavy vehicle will not exceed any speed limit relating to that vehicle (Division 2), |
| (b) | other minor, consequential and ancillary matters (Divisions 1 and 3). |
The Regulation also makes other consequential amendments to other provisions of the Road
Transport (General) Regulation 2005.
This Regulation is made under the Road Transport (General) Act 2005, including sections 10
(the general regulation-making power), 11B and 11C.
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Road Transport (General) Amendment (Heavy Vehicle Driver Fatigue and Speeding Compliance) Regulation 2008
under the
Road Transport (General) Act 2005
1 Name of Regulation
This Regulation is the Road Transport (General) Amendment (Heavy
Vehicle Driver Fatigue and Speeding Compliance) Regulation 2008.
2 Commencement
This Regulation commences on 29 September 2008.
3 Amendment of Road Transport (General) Regulation 2005
The Road Transport (General) Regulation 2005 is amended as set out in Schedule 1.
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(Clause 3)
[1] Clause 25 Appeals against revocation of interlock device approvals
Omit clause 25 (1).
[2] Clause 26, heading
Omit the heading to clause 26. Insert instead:
26 Determination of appeals concerning revocation of interlock device approvals [3] Parts 6 and 7
Insert after Part 5:
Part 6 Heavy vehicle driver fatigue
Division 1 General
39 Definitions Note. Several terms used in this Part are defined in the Act, including authorised officer, Authority, combination, driver licence, GVM, motor vehicle, road, road related area and transport documentation.
In this Part:
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—see clause 102.
AFM standards and business rules means the standards and
business rules for AFM approved by the Australian Transport
Council by notice published in the Commonwealth Government
Gazette.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 approved by the Australian Transport Council by notice published in the Commonwealth Government Gazette 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 approved by the Australian Transport Council by notice published in the
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Commonwealth Government Gazette and is able to be used by the driver when taking rest.
associate has the same meaning as in section 23 of the Act.
Australian Transport Council means the Australian Transport
Council referred to in section 4 of the National Transport
Commission Act 2003 of the Commonwealth or its successor and,
in relation to any particular matter, includes a person who, or a
body that, has been authorised by the Australian Transport
Council to act as its delegate in relation to that matter.
base, in relation to a driver—see clause 74.
BFM accreditation—see clause 102.
BFM standards and business rules means the standards and
business rules for BFM approved by the Australian Transport
Council by notice published in the Commonwealth Government
Gazette.
bus means a motor vehicle built mainly to carry people that seats
over 12 adults (including the driver).
business day means a day that is not a Saturday, Sunday or public
holiday in this jurisdiction.consignee of goods means:
(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.
consignor of goods means:
(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 usually unattended (except by
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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. corresponding Authority, in relation to a participating jurisdiction, means the Authority as defined in the relevant corresponding fatigue law.
corresponding fatigue law, for this Part or a provision of this Part, means a law in force in another jurisdiction corresponding to this Part or a provision of this Part.
driver means a driver of a regulated heavy vehicle and includesan employed driver and a self-employed driver.
Note. Driver is defined in the Act.
duplicate daily sheet means the duplicate of a daily sheet in a
work diary or corresponding work diary.
electronic work diary means a system of recording informationelectronically:
(a)
that has attached to each device that forms part of the system a label:
(i)
that indicates that the device is, or is part of, an electronic work diary that is the subject of a current approval of the Authority under Subdivision 6 of Division 4, and
(ii)
that states the number of the certificate of approval issued by the Authority in respect of the approval, and
(iii) that is in a form approved by the Authority, and (b)
that is the subject of a current approval of the Authority under Subdivision 6 of Division 4.
employed driver means a driver who is employed by another
person to drive a regulated heavy vehicle.
employer means a person who engages someone else to drive a
regulated heavy vehicle under a contract of employment,apprenticeship or training.
Note. Example of an employer—a labour hire company.
Fatigue Authorities Panel means the Panel established by the Fatigue Authorities Panel Rules made by the National Transport Commission, and approved by the Australian Transport Council on 18 July 2008, as amended from time to time.
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fatigue management requirement means a requirement under
this Part relating to:
(a)
a requirement that a person must not drive while impaired by fatigue, or
(b) a driver keeping a work diary or another record, or (c)
the minimum period a driver, or two-up driver, must rest to break up the period of time the driver, or two-up driver, drives or otherwise works, or
(d)
the maximum period a driver, or two-up driver, may drive, or otherwise work, without taking a rest.
heavy truck means:
(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. IAP provisions means Part 6A (Intelligent access programs) of the Road Transport (Mass, Loading and Access) Regulation 2005.
impaired by fatigue—see clause 44.
loader has the same meaning as in section 20 of the Act.loading manager means a person who:
(a) manages, or is responsible for the operation of, premises at which usually on a business day at least 5 regulated heavy vehicles are loaded with goods for transport, or have goods that the vehicles have transported unloaded, or (b) directly or indirectly supervises, manages or controls the loading or unloading of regulated heavy vehicles at such premises. Note. Examples of a loading manager—a company that runs, or a site manager for, a distribution centre.
long and 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).
major rest break means a rest break of at least 5 continuous
hours.
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malfunction, in relation to 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 one or more functions required under this Part, 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).
Note. 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
• data storage on the work diary becoming full
Note. Examples of an odometer malfunctioning:
• the odometer no longer keeps an accurate record of distance travelled motor home means 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.
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. non-participating zone means all jurisdictions that are not
participating jurisdictions.
operator, in relation to a regulated heavy vehicle, means a personwho 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,
but does not include a person merely because the person:
(c) owns the vehicle or combination, or (d) drives the vehicle or combination, or
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(e)
maintains, or arranges for the maintenance of, the vehicle or combination, or
(f) arranges for the registration of the vehicle. participating jurisdiction means:
(a) this State, or (b)
another jurisdiction, if that jurisdiction has a corresponding fatigue law that is in force.
participating zone means all participating jurisdictions.
party in the chain of responsibility, in relation to a regulatedheavy vehicle, means any of the following persons:
(a) the employer of the driver of the vehicle, (b) the prime contractor of the driver, (c) the operator of the vehicle, (d) the scheduler of goods or passengers for transport by the vehicle, and the scheduler of its driver, (e) the consignor of goods for transport by the vehicle, (f) the consignee of goods for transport by the vehicle, (g) the loading manager of goods for transport by the vehicle, (h) the loader of goods on to the vehicle, (i) the unloader of goods from the vehicle.
Note. 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.
plant means 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. Note. 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.
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Note. Example of what is not plant:
• A truck-mounted crane or truck-mounted drilling rig.
prescribed business means business that falls within one or more of the following Divisions recognised in the Australian and New Zealand Standard Industrial Classification (ANZSIC), 2006 edition (Australian Bureau of Statistics publication, Catalogue No 1292.0):
(a) Agriculture, Forestry and Fishing (Division A), (b) Mining (Division B), (c) Manufacturing (Division C), (d) Construction (Division E), (e) Wholesale Trade (Division F), (f) Retail Trade (Division G), (g) Accommodation and Food Services (Division H), (h) Transport, Postal and Warehousing (Division I), (i) Information, Media and Communications (Division J),
(j) Renting, Hiring and Real Estate Services (Division L), (k) Arts and Recreation Services (Division P). prime contractor means a person who engages someone else to
drive a regulated heavy vehicle under a contract for services.Note. Example of a prime contractor—a logistics business that engages a subcontractor to transport goods.
reasonable steps defence—see clause 41.
record keeper, in relation to a driver, means:
(a)
if the driver is an employed driver working under standard hours—the employer, or
(b)
if the driver is an employed driver working under a work and rest hours exemption that was not granted in combination with an operator’s BFM or AFM accreditation—the employer, or
(c)
if the driver is a self-employed driver working under standard hours —the self-employed driver, or
(d)
if the driver is a self-employed driver working under a work and rest hours exemption that was not granted in combination with an operator’s BFM or AFM accreditation—the self-employed driver, or
(e)
if the driver is an employed or self-employed driver working under an operator’s BFM or AFM accreditation— the operator, or
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(f)
if the driver is an employed or self-employed driver working under a work and rest hours exemption that was granted in combination with an operator’s BFM or AFM accreditation—the operator.
record location, in relation to a driver, means:
(a)
the place which the record keeper has instructed the driver is the record location, or
(b)
if the record keeper has not instructed the driver under paragraph (a), the driver’s base.
regulated heavy vehicle means:
(a) a heavy truck, or (b) a bus, but does not include:
(c) plant, or (d) a motor home. rest time—see clause 58.
scheduler means a person who:
(a) schedules a driver’s work or rest time, or (b) schedules the transport of passengers or goods by road. Note. 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.
Note. 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.
self-employed driver means a driver who is not an employed
driver.
solo driver means a driver who is not a party to a two-up driving
arrangement.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.
suitable rest place means:
(a)
a rest area designated for and able to be used by a regulated heavy vehicle, or
(b)
a place at which a regulated heavy vehicle may be safely and lawfully parked.
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supplementary record means a record that:
(a) is not made in a written or electronic work diary, but (b) is at least as accurate and understandable as, and is made in a similar form to, a record made in a written or electronic work diary.
Note. As a supplementary record becomes part of a work diary once it is made, it must be kept by the driver of a regulated heavy vehicle in the vehicle for 28 days after it is made, and it must be kept by the record keeper for 3 years after it is made.
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 of goods means a person who:
(a)
unloads from a vehicle or combination goods that have been transported by road, or
(b)
unloads from a vehicle or combination a freight container (whether or not containing goods) that has been transported by road, or
(c)
without limiting the above, unloads from a freight container that is on a vehicle or combination goods that have been transported by road, or
(d)
supervises an activity mentioned in paragraph (a), (b) or (c), or
(e)
manages or controls an activity mentioned in paragraph (a), (b), (c) or (d).
work and rest change—see clause 59.
work and rest hours exemption—see clause 117.
work and rest hours option—see clause 56.
work diary—see clause 75.
work diary exemption—see clause 118.
work time—see clause 57.
written work diary means a written work diary issued to a driver
under Subdivision 5 of Division 4 or under a corresponding
fatigue law.
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40 Matters court may consider for deciding whether person took all reasonable steps and other matters relating to offences
(1)
A 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 and rest hours—the circumstances of the offence (for example, the risk category that the offence belongs to), and
(d)
the abilities, experience, expertise, knowledge, qualifications and training that the person, or the person’s agent or employee, had or ought reasonably have had, and
(e)
the availability and suitability of ways to eliminate, prevent or reduce the risk or to minimise the likelihood of the risk eventuating, and
(f) the body of fatigue knowledge. (2) In a prosecution for an offence under clause 46 (1), 50, 51, 52, 54 or 55, it is not necessary to prove that any particular person drove, or would or may have driven, the vehicle on a road while impaired by fatigue. (3) It is not of itself a defence to an offence under this Part that a
person complied with an accreditation granted under this Part.41 What is the “reasonable steps defence”
If a provision of this Part states that a person has the benefit of the reasonable steps defence for an offence, it is a defence to the offence for the person to prove that:
(a)
the person did not know, and could not reasonably be expected to have known, of the contravention concerned, and
(b) either:
(i)
the person had taken all reasonable steps to prevent the contravention concerned, or
(ii)
the person could not reasonably be expected to have taken any steps to prevent the contravention concerned.
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42 Exclusion of mistake of fact defence
(1)
This clause applies if a provision of this Part states that a person does not have the benefit of the mistake of fact defence for an offence.
(2)
It is not a defence to the offence for the person to prove that, at or before the time of the act or omission constituting the offence, the person was under a mistaken but honest and reasonable belief about facts which, had they existed, would have meant that the act or omission would not have constituted an offence.
Division 2 Duties relating to fatigue Subdivision 1 What is fatigue 43 What is “fatigue”
(1) Fatigue includes (but is not limited to):
(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).
(2)
When deciding whether a driver is fatigued, a court may take into account anything it considers is relevant, including (but not limited to) the following:
(a) what is commonly understood as being fatigued, (b) the causes of fatigue, (c) the signs of fatigue, (d) the body of fatigue knowledge. (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).
Note. 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 (ie the “body clock”) • environmental stress (eg heat, noise, vibrations) • personal health
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(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).
Note. 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 to risk of fatigue, either at a workplace or on a road. 44 What is “impaired by fatigue”
(1) A driver is impaired by fatigue if the driver’s ability to drive a
vehicle safely is affected by fatigue.(2)
When deciding whether a driver was impaired by fatigue, a court may take into account anything it considers is relevant, including (but not limited to) the following:
(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, (b) any behaviour of the driver that may have resulted from being impaired by fatigue, Note. Examples:
• the circumstances of any incident, crash or near miss • poor driving judgement •
inattentive driving (eg drifting into other lanes or not changing gears smoothly)
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(c)
the nature and extent of any physical or mental exertion by the driver,
(d)
whether the driver was in breach of his or her work and rest hours.
(3)
A court may consider a driver to be impaired by fatigue even if the driver has complied with any requirements under this Part (for example, the standard hours) or under any other legislation.
Subdivision 2 Duties to avoid and prevent fatigue 45 Driver’s duty to avoid driver fatigue
(1) A person must not drive a regulated heavy vehicle on a road or
road related area while he or she is impaired by fatigue.
Maximum penalty: 20 penalty units.(2) A person accused of an offence under this clause does not have
the benefit of the mistake of fact defence.46 Duty of 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 or road related area while the person is impaired by fatigue.
Maximum penalty:
(a)
in the case of an individual—25 penalty units (in the case of a first offence) or 50 penalty units (in the case of a second or subsequent offence), and
(b)
in the case of a corporation—125 penalty units (in the case of a first offence) or 250 penalty units (in the case of a second or subsequent offence).
(2) A person accused of an offence under this clause does not have
the benefit of the mistake of fact defence.
Subdivision 3 Additional duties on certain parties in the
chain of responsibility
47 Intention irrelevant in determining causation
For the purposes of this Subdivision, a person can cause something to happen even though the person had no intention of causing that thing to happen.
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48 Cause includes “contribute to causing” and “encourage”
For the purposes of this Subdivision, a reference to causing a thing includes a reference to contributing to causing the thing, and to encouraging the thing.
49 Duties on employers, prime contractors and operators
(1) This clause 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 employer’s, prime contractor’s or operator’s business practices will not cause, by act or omission, the driver:
(a)
to drive on a road or road related area while impaired by fatigue, or
(b)
to drive while in breach of his or her work and rest hours option, or
(c)
to drive in breach of another law in order to avoid driving while impaired by fatigue or while in breach of his or her work and rest hours option.
Maximum penalty:
(a)
in the case of an individual—20 penalty units (in the case of a first offence) or 40 penalty units (in the case of a second or subsequent offence), and
(b)
in the case of a corporation—100 penalty units (in the case of a first offence) or 200 penalty units (in the case of a second or subsequent offence).
Note. Examples of business practices that may cause a driver to drive while impaired by fatigue by omission:
• failing to provide for remuneration for time spent queuing, • failing to provide rest breaks in a driver’s schedule, •
failing to provide for contingency plans for unexpected traffic delays,
•
failing to provide for loading or unloading in schedule times.
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(3) The employer must not cause the driver to drive the vehicle
unless:
(a) the employer has complied with subclause (2), and (b)
the employer, after making reasonable inquiries, is satisfied that the scheduler has complied with clause 50.
Maximum penalty:
(a)
in the case of an individual—15 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence), and
(b)
in the case of a corporation—75 penalty units (in the case of a first offence) or 150 penalty units (in the case of a second or subsequent offence).
(4)
The prime contractor and operator each must not cause 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 subclause (2), and
(b)
the prime contractor or operator, after making reasonable inquiries, is satisfied that the scheduler has complied with 50.
Maximum penalty:
(a)
in the case of an individual—15 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence), and
(b)
in the case of a corporation—75 penalty units (in the case of a first offence) or 150 penalty units (in the case of a second or subsequent offence).
(5) A person accused of an offence under this clause does not have
the benefit of the mistake of fact defence.(6)
In this clause, business practices of an employer, prime contractor or operator, means the practices of the employer, prime contractor or operator in running the business, and includes:
(a) the operating policies and procedures of the business, and (b)
the human resource and contract management arrangements of the business (including the method by which driver remuneration is calculated), and
(c) arrangements for managing safety.
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50 Duties of schedulers
(1) This clause 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, by act or omission, the driver:
(a) to drive on a road or road related area while impaired by fatigue, or (b) to drive while in breach of his or her work and rest hours option, or (c) to drive in breach of another law in order to avoid driving while impaired by fatigue or while in breach of his or her work and rest hours option. Maximum penalty:
(a) in the case of an individual—20 penalty units (in the case of a first offence) or 40 penalty units (in the case of a second or subsequent offence), and (b) in the case of a corporation—100 penalty units (in the case of a first offence) or 200 penalty units (in the case of a second or subsequent offence). (3) The scheduler must not cause the driver to drive the vehicle
unless:
(a) the scheduler has complied with subclause (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 and rest hours option, and
(ii) traffic conditions and other delays that could reasonably be expected.
Maximum penalty:
(a)
in the case of an individual—15 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence), and
(b)
in the case of a corporation—75 penalty units (in the case of a first offence) or 150 penalty units (in the case of a second or subsequent offence).
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(4) A person accused of an offence under this clause does not have
the benefit of the mistake of fact defence.51 Duties on consignors and consignees
(1) This clause 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 (such as delivery times) will not cause, by act or omission, the driver:
(a)
to drive on a road or road related area while impaired by fatigue, or
(b)
to drive while in breach of his or her work and rest hours option, or
(c)
to drive in breach of another law in order to avoid driving while impaired by fatigue or while in breach of his or her work and rest hours option.
Maximum penalty:
(a)
in the case of an individual—20 penalty units (in the case of a first offence) or 40 penalty units (in the case of a second or subsequent offence), and
(b)
in the case of a corporation—100 penalty units (in the case of a first offence) or 200 penalty units (in the case of a second or subsequent offence).
(3)
The consignor and consignee each must take all reasonable steps to ensure that the terms of consignment (such as delivery times) will not cause the employer of an employed driver, prime contractor of a self-employed driver or operator of the regulated heavy vehicle by act or omission to cause the driver:
(a)
to drive on a road or road related area while impaired by fatigue, or
(b)
to drive while in breach of his or her work and rest hours option, or
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(c)
to drive in breach of another law in order to avoid driving while impaired by fatigue or while in breach of his or her work and rest hours option.
Maximum penalty:
(a)
in the case of an individual—20 penalty units (in the case of a first offence) or 40 penalty units (in the case of a second or subsequent offence), and
(b)
in the case of a corporation—100 penalty units (in the case of a first offence) or 200 penalty units (in the case of a second or subsequent offence).
(4) The consignor and consignee each must not cause 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 subclause (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 clause 49, and
(ii) the scheduler has complied with clause 50, 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 clause 49, and
(ii) the scheduler has complied with clause 50. Maximum penalty:
(a)
in the case of an individual—15 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence), and
(b)
in the case of a corporation—75 penalty units (in the case of a first offence) or 150 penalty units (in the case of a second or subsequent offence).
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(5) The consignor or consignee must not make a demand that affects, or that may affect, a time in a schedule for the transport of the consigned goods and that may cause the driver:
(a) to drive on a road or road related area while impaired by fatigue, or (b) to drive while in breach of the driver’s work and rest hours option, or (c) to drive while in breach of another law in order to avoid driving while impaired by fatigue or while in breach of the driver’s work and rest hours option. Maximum penalty:
(a) in the case of an individual—20 penalty units (in the case of a first offence) or 40 penalty units (in the case of a second or subsequent offence), and (b) in the case of a corporation—100 penalty units (in the case of a first offence) or 200 penalty units (in the case of a second or subsequent offence). (6) Subclause (5) does not apply if the consignor or consignee,
before making the demand:
(a) complies with subclauses (2) and (3), and (b) is satisfied, after making reasonable inquiries, that the making of the demand will not cause or permit a person to contravene clause 50. (7) A person accused of an offence under this clause does not have
the benefit of the mistake of fact defence.(8) In this clause, terms of consignment includes (but is not limited to):
(a) terms that are expressed, implied or established by custom or practice, and (b) terms relating to pick-up or delivery times or driving or delivery schedules.
52 Duties of loading managers
(1)
A loading manager must take all reasonable steps to ensure that the arrangements for loading, unloading and waiting time of regulated heavy vehicles at the loading manager’s premises will not cause, by act or omission, a driver of a regulated heavy vehicle:
(a)
to drive on a road or road related area while impaired by fatigue, or
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(b)
to drive while in breach of his or her work and rest hours option, or
(c)
to drive in breach of another law in order to avoid driving while impaired by fatigue or while in breach of his or her work and rest hours option.
Maximum penalty:
(a)
in the case of an individual—20 penalty units (in the case of a first offence) or 40 penalty units (in the case of a second or subsequent offence), and
(b)
in the case of a corporation—100 penalty units (in the case of a first offence) or 200 penalty units (in the case of a second or subsequent offence).
(2) If the loading manager or a person acting under his or her
supervision or control:
(a)
has advised the driver, either directly or indirectly, of when the loading, unloading or waiting time of the vehicle is to start, and the loading manager or person becomes aware that the loading, unloading or waiting time will, or is likely to, start more than 30 minutes late, or
(b)
has advised the driver, either directly or indirectly, of when the loading, unloading or waiting time of the vehicle is to finish, and the loading manager or person becomes aware that the loading, unloading or waiting time will, or is likely to, finish more than 30 minutes late, or
(c)
is unable to advise the driver of when the loading, unloading or waiting time of the vehicle is to start, or
(d)
is unable to advise the driver of when the loading, unloading or waiting time of the vehicle is to finish,
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.
Maximum penalty:
(a)
in the case of an individual—15 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence), and
(b)
in the case of a corporation—75 penalty units (in the case of a first offence) or 150 penalty units (in the case of a second or subsequent offence).
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(3) A person accused of an offence under this clause does not have
the benefit of the mistake of fact defence.53 Duty to assess and manage fatigue of drivers
(1) This clause 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, and (d) the scheduler of:
(i) a regulated heavy vehicle, or (ii) a driver of a regulated heavy vehicle, and (e) the consignor of goods for transport by a regulated heavy vehicle, who carries on business of which a substantial part is prescribed business, and (f) the consignee of goods for transport by a regulated heavy vehicle, who carries on business of which a substantial part is prescribed business, and (g) the loading manager of goods for transport by a regulated heavy vehicle, and (h) the loader of goods for transport by a regulated heavy vehicle, who carries on business of which a substantial part is prescribed business, and (i) the unloader for transport by a regulated heavy vehicle, who carries on business of which a substantial part is prescribed business.
(2) A person to whom this clause applies must:
(a) identify and assess the aspects of the activities of the person, and the driver, that may lead to a contravention of a fatigue management requirement by the driver, and (b) for each aspect identified and assessed under paragraph (a), identify and assess: (i) the risk of the aspect leading to a contravention of a fatigue management requirement by the driver, and
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(ii) if there is a risk of the aspect leading to a contravention of a fatigue management requirement by the driver—the measures the person may take to eliminate the risk or, if it is not reasonably practicable to eliminate the risk, to control the risk, and
(c)
carry out the identification and assessment referred to in paragraphs (a) and (b):
(i) at least annually, and (ii)
after each event that indicated the way the activities of the person or driver have led, or may lead, to a contravention of a fatigue management requirement by the driver, and
(d)
take the measures identified and assessed under paragraph (b) (ii), and
(e)
document the actions taken under paragraphs (a)–(d) and retain that documentation for at least 3 years.
Maximum penalty:
(a)
in the case of an individual—20 penalty units (in the case of a first offence) or 40 penalty units (in the case of a second or subsequent offence), and
(b)
in the case of a corporation—100 penalty units (in the case of a first offence) or 200 penalty units (in the case of a second or subsequent offence).
(3) It is a defence to any proceedings against a person for an offence
against subclause (2) if the person proves that:
(a)
it was not reasonably practicable for the person to comply with that subclause, or
(b)
the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.
Subdivision 4 Certain requests, contracts etc prohibited 54 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 the driver:
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(a) to drive on a road or road related area while impaired by fatigue, or (b) to drive while in breach of his or her work and rest hours option, or (c) to drive in breach of another law in order to avoid driving while impaired by fatigue or while in breach of his or her work and rest hours option. Note. Example of a requirement that contravenes this clause—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.
Maximum penalty:
(a) in the case of an individual—25 penalty units (in the case of a first offence) or 50 penalty units (in the case of a second or subsequent offence), and (b) in the case of a corporation—125 penalty units (in the case of a first offence) or 250 penalty units (in the case of a second or subsequent offence). 55 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 a driver:
(a)
to drive on a road or road related area while impaired by fatigue, or
(b)
to drive while in breach of his or her work and rest hours option, or
(c)
to drive in breach of another law in order to avoid driving while impaired by fatigue or while in breach of his or her work and rest hours option.
Maximum penalty:
(a)
in the case of an individual—25 penalty units (in the case of a first offence) or 50 penalty units (in the case of a second or subsequent offence), and
(b)
in the case of a corporation—125 penalty units (in the case of a first offence) or 250 penalty units (in the case of a second or subsequent offence).
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(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 a driver:
(a)
to drive on a road or road related area while impaired by fatigue, or
(b)
to drive while in breach of his or her work and rest hours option, or
(c)
to drive in breach of another law in order to avoid driving while impaired by fatigue or while in breach of his or her work and rest hours option.
Maximum penalty:
(a)
in the case of an individual—25 penalty units (in the case of a first offence) or 50 penalty units (in the case of a second or subsequent offence), and
(b)
in the case of a corporation—125 penalty units (in the case of a first offence) or 250 penalty units (in the case of a second or subsequent offence).
Division 3 Duties relating to work and rest times Subdivision 1 Key concepts for this Division 56 What is “work and rest hours option”
A driver’s work and rest hours option at any particular time is whichever one of the following applies to the driver at that time under this Part:
(a) standard hours, (b) BFM hours, (c) AFM hours, (d) the hours specified in a work and rest hours exemption (whether or not granted in combination with an operator’s BFM or AFM accreditation). 57 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 or road related area, and
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(b) any other time that the driver spends doing tasks that are related to the operation of a regulated heavy vehicle, including (but not limited to) the following:
(i) loading or unloading the vehicle, (ii) inspecting, servicing or repairing the vehicle,
(iii) inspecting or attending to the load on the vehicle, (iv) attending to the passengers of a bus, (v) cleaning or refuelling the vehicle, (vi) performing marketing tasks in relation to the operation of the vehicle, (vii) helping with, or supervising, an activity mentioned in subparagraphs (i)–(vi), (viii) recording information, or completing a document, in accordance with this Part or otherwise, in relation to the operation of the vehicle.
(2) In this clause:
driving includes:
(a) being in the driver’s seat of a regulated heavy vehicle while its engine is running, and (b) being in a regulated heavy vehicle for the purpose of instructing or supervising the driver of the vehicle. marketing tasks includes:
(a) arranging for the transport of passengers or goods, and (b) canvassing for orders for the transport of passengers or goods. 58 What is “rest time”
Rest time of a driver is time that is not work time of the driver.
59 What is a “work and rest change”
A work and 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.
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60 Counting time, including work and rest time
(1) A period of work time of less than 15 minutes counts as
15 minutes work time.Note. 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.Note. 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 ie 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:
(a) if one or more major rest breaks are relevant to the period, from the end of a relevant major rest break, or (b) in any other case, from the end of a relevant period of rest time. (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 Part, the period must be counted by reference to the time zone of the base. Note. 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). 61 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.
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62 Counting time from outside the participating zone
(1)
This clause applies to a driver if the driver drives a regulated heavy vehicle into this jurisdiction from another jurisdiction within the non-participating zone.
(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.
(3) If, within the last 7 days, the driver spent work time only in the
non-participating zone:
(a)
any time spent in the other jurisdiction before the start of the driver’s last major rest break before entering this jurisdiction is to be disregarded, and
(b)
any time spent in the other jurisdiction after the start of that major rest break is to be taken into account, and
(c)
any time spent by the driver in the non-participating zone (or another jurisdiction in the participating zone) after the start of that major rest break is to be treated in the same way as it would have been treated if the time had been spent in this jurisdiction.
Subdivision 2 Standard hours 63 Application of Subdivision
(1)
This Subdivision applies to the work and rest times for the driver of a regulated heavy vehicle, if the driver is not working under a BFM or AFM accreditation (the standard hours).
(2) The solo driver of a bus has the option to drive under either (but
not both):
(a) the standard hours set out in clause 64, or (b) the standard hours set out in clause 65. 64 Standard hours—solo drivers
(1) The Table to this clause sets out the standard hours for the solo
driver of a regulated heavy vehicle (including a bus).(2) In any period referred to in Column 1 of the Table to this clause,
the solo driver:
(a)
must not work for more than the work time mentioned in Column 2 of that Table, and
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(b)
must have the rest of that period off work, with at least the rest time mentioned in Column 3 of that Table.
Maximum penalty:
(a)
in relation to a minor risk offence—10 penalty units (in the case of a first offence) or 20 penalty units (in the case of a second or subsequent offence), or
(b)
in relation to a substantial risk offence—15 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence), or
(c)
in relation to a severe risk offence—20 penalty units (in the case of a first offence) or 40 penalty units (in the case of a second or subsequent offence), or
(d)
in relation to a critical risk offence—25 penalty units (in the case of a first offence) or 50 penalty units (in the case of a second or subsequent offence).
(3)
A contravention of subclause (2) in relation to a period referred to in Column 1 of the Table to this clause is an offence of the risk category determined in accordance with Column 4 of the Table.
(4) A person accused of an offence under this clause does not have
the benefit of the mistake of fact defence.Standard hours—Solo drivers of a regulated heavy vehicle
Column 1 Column 2 Column 3 Column 4
Total Maximum Minimum Offence category
period work time rest time
In any a driver and must If in that the period must not have the period a following of… work for rest of that driver category
more period off has… of offence than… work, with is at least… committed
…
5½ hrs 5¼ hrs work 15 > 5¼ hrs minor risk time continuous work time mins rest
time8 hrs 7½ hrs work 30 mins rest > 7½ hrs minor risk time time, in work time blocks of 15 continuous mins
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Column 1 Column 2 Column 3 Column 4
Total Maximum Minimum Offence category period work time rest time In any a driver and must
If in that the period must not have the
period a following of… work for rest of that
driver category more period off
has… of offence
than… work, with is at least… committed
…
11 hrs 10 hrs work 60 mins rest ≤ 10¾ hrs minor risk time time, in work time blocks of 15 > 10¾ hrs substantial continuous work time risk mins 24 hrs 12 hrs work ≤ 12¾ hrs minor risk time work time > 12¾ but substantial not risk > 13¼ hrs work time
> 13¼ but severe risk not
> 13½ hrs
work time> 13½ hrs critical risk work time 7 < 7 but not minor risk continuous < 6¼ hrs continuous stationary hrs rest time
stationary rest time
< 6¼ but not substantial < 5¾ risk continuous
hrs
stationary
rest time
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Column 1 Column 2 Column 3 Column 4
Total Maximum Minimum Offence category period work time rest time In any a driver and must
If in that the period must not have the
period a following of… work for rest of that
driver category more period off
has… of offence
than… work, with is at least… committed
…
< 5¾ but severe risk not < 5½
continuous
hrs
stationary
rest time< 5½ critical risk continuous
hrs
stationary
rest time
7 days 72 hrs work ≤ 73½ hrs minor risk (168 hrs) time work time > 73½ but substantial not risk > 74½ hrs work time
> 74½ but severe risk not > 75 hrs
work time> 75 hrs critical risk work time
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Column 1 Column 2 Column 3 Column 4
Total Maximum Minimum Offence category period work time rest time In any a driver and must
If in that the period must not have the
period a following of… work for rest of that
driver category more period off
has… of offence
than… work, with is at least… committed
…
24 < 24 but not minor risk continuous < 23¼ hrs continuous stationary hrs rest time
stationary rest time
< 23¼ but substantial not < 22¾ risk continuous
hrs
stationary
rest time< 22¾ but severe risk not < 22½
continuous
hrs
stationary
rest time< 22½ critical risk continuous
hrs
stationary
rest time
14 days 144 hrs ≤ 145½ hrs minor risk (336 hrs) work time work time > 145½ but substantial not risk > 146½ hrs
work time> 146½ but severe risk not
> 147 hrs
work time
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Column 1 Column 2 Column 3 Column 4
Total Maximum Minimum Offence category period work time rest time In any a driver and must
If in that the period must not have the
period a following of… work for rest of that
driver category more period off
has… of offence
than… work, with is at least… committed
…
> 147 hrs critical risk work time
2 x night < 7 but not minor risk rest breaks, < 6¼ and continuous
hrs
stationary
rest time per
block< 6¼ but not substantial < 5¾ risk continuous
hrs
stationary of
that rest time
per block< 5¾ but not severe risk < 5½
continuous
hrs
stationary of
that rest time
per block< 5½ critical risk continuous
hrs
stationary of
that rest time
per block
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Column 1 Column 2 Column 3 Column 4
Total Maximum Minimum Offence category period work time rest time In any a driver and must
If in that the period must not have the
period a following of… work for rest of that
driver category more period off
has… of offence
than… work, with is at least… committed
…
2 x night < 7 but not minor risk rest breaks < 6¼ taken on continuous consecutive hrs days stationary of that rest time per block < 6¼ but not substantial < 5¾ risk continuous
hrs
stationary of
that rest time
per block< 5¾ but not severe risk < 5½
continuous
hrs
stationary of
that rest time
per block< 5½ critical risk continuous
hrs
stationary of
that rest time
per block
65 Standard hours—solo drivers of buses
(1) The Table to this clause sets out the standard hours for the solo
driver of a bus.(2) In any period mentioned in Column 1 of the Table to this clause,
the solo driver of a bus:
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(a)
must not work for more than the work time mentioned in Column 2 of that Table, and
(b)
must have the rest of that period off work, with at least the rest time mentioned in Column 3 of that Table.
Maximum penalty:
(a)
in relation to a minor risk offence—10 penalty units (in the case of a first offence) or 20 penalty units (in the case of a second or subsequent offence), or
(b)
in relation to a substantial risk offence—15 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence), or
(c)
in relation to a severe risk offence—20 penalty units (in the case of a first offence) or 40 penalty units (in the case of a second or subsequent offence), or
(d)
in relation to a critical risk offence—25 penalty units (in the case of a first offence) or 50 penalty units (in the case of a second or subsequent offence).
(3)
A contravention of subclause (2) in relation to a period referred to in Column 1 of the Table to this clause is an offence of the risk category determined in accordance with Column 4 of the Table.
(4) A person accused of an offence under this clause does not have
the benefit of the mistake of fact defence.Standard hours—solo drivers of buses
Column 1 Column 2 Column 3 Column 4
Total Maximum Minimum Offence category
period work time rest time
In any a driver and must If in that the period must not have the period a following of… work for rest of that driver category
more period off has… of offence than… work, with is at least… committed
…
5½ hrs 5¼ hrs work 15 > 5¼ hrs minor risk time continuous work time mins rest
time
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Column 1 Column 2 Column 3 Column 4 Total Maximum Minimum Offence category period work time rest time In any a driver and must
If in that the period must not have the
period a following of… work for rest of that
driver category more period off
has… of offence
than… work, with is at least… committed
…
8 hrs 7½ hrs work 30 mins rest > 7½ hrs minor risk time time, in work time blocks of 15 continuous mins
11 hrs 10 hrs work 60 mins rest ≤ 10¾ hrs minor risk time time, in work time blocks of 15 > 10¾ hrs substantial continuous work time risk mins 24 hrs 12 hrs work ≤ 12¾ hrs minor risk time work time > 12¾ but substantial not risk > 13¼ hrs work time
> 13¼ but severe risk not
> 13½ hrs
work time> 13½ hrs critical risk work time 7 < 7 but not minor risk continuous < 6¼ hrs continuous stationary hrs rest time
stationary rest time
< 6¼ but not substantial < 5¾ risk continuous
hrs
stationary
rest time
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Column 1 Column 2 Column 3 Column 4 Total Maximum Minimum Offence category period work time rest time In any a driver and must
If in that the period must not have the
period a following of… work for rest of that
driver category more period off
has… of offence
than… work, with is at least… committed
…
< 5¾ but not severe risk < 5½
continuous
hrs
stationary
rest time< 5½ critical risk continuous
hrs
stationary
rest time
7 days 6 x night < 7 but not minor risk (168 hrs) rest breaks < 6¼
continuous
hrs
stationary of
that rest time
per block< 6¼ but not substantial < 5¾ risk continuous
hrs
stationary of
that rest time
per block< 5¾ but not severe risk < 5½
continuous
hrs
stationary of
that rest time
per block
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Column 1 Column 2 Column 3 Column 4 Total Maximum Minimum Offence category period work time rest time In any a driver and must
If in that the period must not have the
period a following of… work for rest of that
driver category more period off
has… of offence
than… work, with is at least… committed
…
< 5½ critical risk continuous
hrs
stationary of
that rest time
per block
28 days 288 hrs ≤ 289½ hrs minor risk (672 hrs) work time work time > 289½ but substantial not risk > 290½ hrs
work time> 290½ but severe risk not
> 291 hrs
work time> 291 hrs critical risk work time
4 x 24 < 24 but not minor risk blocks < 23¼ continuous continuous hrs hrs stationary stationary rest time rest time per
block< 23¼ but substantial not < 22¾ risk continuous
hrs
stationary
rest time per
block
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Column 1 Column 2 Column 3 Column 4 Total Maximum Minimum Offence category period work time rest time In any a driver and must
If in that the period must not have the
period a following of… work for rest of that
driver category more period off
has… of offence
than… work, with is at least… committed
…
< 22¾ but severe risk not < 22½
continuous
hrs
stationary
rest time per
block< 22½ critical risk continuous
hrs
stationary
rest time per
block
66 Standard hours—two-up drivers
(1)
The Table to this clause sets out the standard hours for a two-up driver of a regulated heavy vehicle, except when the two-up driver is working under a BFM or AFM accreditation.
(2) In any period mentioned in Column 1 of the Table to this clause,
the two-up driver:
(a)
must not work for more than the work time mentioned in Column 2 of that Table, and
(b)
must have the rest of that period off work, with at least the rest time mentioned in Column 3 of that Table.
Maximum penalty:
(a)
in relation to a minor risk offence—10 penalty units (in the case of a first offence) or 20 penalty units (in the case of a second or subsequent offence), or
(b)
in relation to a substantial risk offence—15 penalty units (in the case of a first offence) or 30 penalty units (in the case of a second or subsequent offence), or
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(c)
in relation to a severe risk offence—20 penalty units (in the case of a first offence) or 40 penalty units (in the case of a second or subsequent offence),
(d)
in relation to a critical risk offence—25 penalty units (in the case of a first offence) or 50 penalty units (in the case of a second or subsequent offence).
(3)
A contravention of subclause (2) in relation to a period referred to in Column 1 of the Table to this clause is an offence of the risk category determined in accordance with Column 4 of the Table.
(4) A person accused of an offence under this clause does not have
the benefit of the mistake of fact defence.Standard hours—Two-up drivers of a regulated heavy vehicle
Column 1 Column 2 Column 3 Column 4
Total Maximum Minimum Offence category
period work time rest time
In any a driver and must If in that the period must not have the period a following of… work for rest of that driver category
more period off has… of offence than… work, with is at least… committed
…
5½ hrs 5¼ hrs work 15 > 5¼ hrs minor risk time continuous work time mins
stationary
rest time8 hrs 7½ hrs work 30 mins > 7½ hrs minor risk time stationary work time rest time, in blocks of 15 continuous mins
11 hrs 10 hrs work 60 mins ≤ 10¾ hrs minor risk time stationary work time rest time, in > 10¾ hrs substantial blocks of 15 work time risk continuous
mins
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Column 1 Column 2 Column 3 Column 4
Total Maximum Minimum Offence category period work time rest time In any a driver and must
If in that the period must not have the
period a following of… work for rest of that
driver category more period off
has… of offence
than… work, with is at least… committed
…
24 hrs 12 hrs work ≤ 12¾ hrs minor risk time work time > 12¾ but substantial not risk > 13¼ hrs work time
> 13¼ but severe risk not
> 13½ hrs
work time> 13½ hrs critical risk work time
5 < 5 but not minor risk continuous < 4¼ hrs continuous stationary hrs of that rest time, or rest time 5 < 4¼ but not substantial continuous < 3¾ risk hrs rest time in an continuous approved hrs of that sleeper berth rest time while the < 3¾ but not severe risk vehicle is < 3½ moving
continuous hrs of that rest time
< 3½ critical risk continuous hrs of that rest time
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Column 1 Column 2 Column 3 Column 4
Total Maximum Minimum Offence category period work time rest time In any a driver and must
If in that the period must not have the
period a following of… work for rest of that
driver category more period off
has… of offence
than… work, with is at least… committed
…
52 hrs 10 < 10 but not minor risk continuous < 9¼ hrs continuous stationary hrs rest time
stationary rest time
< 9¼ but not substantial < 8¾ risk continuous
hrs
stationary
rest time< 8¾ but not severe risk < 8½
continuous
hrs
stationary
rest time< 8½ critical risk continuous
hrs
stationary
rest time7 days 60 hrs work > 60 but not minor risk (168 hrs)
time
> 61½ hrs work time
> 61½ but substantial not risk > 62½ hrs work time
> 62½ but severe risk not > 63 hrs
work time
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Column 1 Column 2 Column 3 Column 4
Total Maximum Minimum Offence category period work time rest time In any a driver and must
If in that the period must not have the
period a following of… work for rest of that
driver category more period off
has… of offence
than… work, with is at least… committed
…
> 63 hrs critical risk work time
24 < 24 but not minor risk continuous < 23¼ hrs continuous stationary hrs rest time, stationary and rest time < 23¼ but substantial not < 22¾ risk continuous
hrs
stationary
rest time< 22¾ but severe risk not < 22½
continuous
hrs
stationary
rest time< 22½ critical risk continuous
hrs
stationary
rest time
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Column 1 Column 2 Column 3 Column 4
Total Maximum Minimum Offence category period work time rest time In any a driver and must
If in that the period must not have the
period a following of… work for rest of that
driver category more period off
has… of offence
than… work, with is at least… committed
…
24 hrs < 24 but not minor risk stationary < 23¼ hrs rest time in stationary blocks of at rest time in least 7 total continuous < 7 but not hrs < 6¼ stationary continuous rest time hrs
stationary
rest time per
block< 23¼ but substantial not risk < 22¾ hrs stationary rest time in
total < 6¼ but not
< 5¾
continuous
hrs
stationary
rest time per
block< 22¾ but severe risk not
< 22½ hrs
stationary
rest time in
total
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Column 1 Column 2 Column 3 Column 4
Total Maximum Minimum Offence category period work time rest time In any a driver and must
If in that the period must not have the
period a following of… work for rest of that
driver category more period off
has… of offence
than… work, with is at least… committed
…< 5¾ but not
< 5½
continuous
hrs
stationary
rest time perblock
< 22½ hrs critical risk stationary
rest time in
total< 5½
continuous
hrs
stationary
rest time per
block
14 days 120 hrs > 120 but minor risk (336 hrs) work time not
> 121½ hrs
work time> 121½ but substantial not risk > 122½ hrs
work time> 122½ but severe risk not
> 123 hrs
work time> 123 hrs critical risk work time
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Column 1 Column 2 Column 3 Column 4
Total Maximum Minimum Offence category period work time rest time In any a driver and must
If in that the period must not have the
period a following of… work for rest of that
driver category more period off
has… of offence
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(6)
When determining whether a person has previously been found guilty of an offence under this Part, the court must have regard to a finding of guilt for an offence committed under corresponding provisions of a corresponding law.
Subdivision 2 Savings and transitional provisions 143 Definitions
In this Subdivision: established under the repealed Regulation.
corresponding TFMS has the same meaning as it had in the
repealed Regulation.
Fatigue Management Scheme exemption means a FMS
exemption under the repealed Regulation.
repealed Regulation means the Road Transport (Safety and
Traffic Management) (Driver Fatigue) Regulation 1999.144 TFMS applications
(1) This clause applies if, immediately before the commencement of
this clause:
(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. 145 Period of grace for certain drivers
(1)
Despite anything to the contrary in this Part, until the expiry of the period ending 12 months after the commencement of this clause:
(a)
a driver who was registered as a participant in TFMS or a corresponding TFMS may drive at BFM hours, and
(b)
a driver who was subject to a Fatigue Management Scheme exemption under the repealed Regulation may drive at the hours approved in the exemption.
(2)
Subclause (1) (a) does not apply at any time that the driver is in breach of any condition or requirement of the TFMS or a corresponding TFMS, as the case may be.
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(3) Subclause (1) (b) does not apply at any time that the driver is in breach of any condition or requirement of the Fatigue Management Scheme exemption, or if the exemption is cancelled. (4) For the purposes of this clause, a driver is not in breach of any condition or requirement referred to in subclause (2) or (3) if, instead of recording any entry the driver was required to record in a logbook, the driver records the entry in a work diary issued under this Part. (5) For the purposes of this clause, if a driver's employer has yet to obtain BFM accreditation, it is sufficient compliance with any requirement of this Part to record a BFM accreditation number if the employer's TFMS or Fatigue Management Scheme exemption (as the case may be) registration number is recorded instead. 146 Applications for reconsideration by Authority
(1) This clause applies if, immediately before the commencement of
this clause:
(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 Part had not
commenced.147 Exemption applications
(1) This clause applies if, immediately before the commencement of
this clause:
(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 Part.
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148 Existing exemptions continue
(1)
This clause applies if, immediately before the commencement of this clause, a limited driving hours exemption or logbook exemption applied to a person under the repealed Regulation.
(2) The exemption is taken to have been made under this Part, if it
could have been made under this Part.(3) Unless cancelled sooner under subclause (4), 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.
(4) The Authority may cancel an exemption to which this clause
applies:
(a) in the case of an exemption granted to an individual, by giving the person holding the exemption a written notice stating that it has cancelled the exemption, or (b) in any other case, by publishing a notice in the Gazette stating that the exemption is cancelled. 149 Existing logbooks
(1)
A driver may continue to use a logbook issued under the repealed Regulation as if it was a work diary for the purposes of this Part:
(a)
if the driver is working under standard hours—for 90 days after the commencement of this clause or until the driver has obtained a work diary, whichever occurs first, or
(b)
if the driver is working under BFM hours (as permitted by clause 145 (Period of grace for certain drivers))—for 90 days after the commencement of this clause or until the driver has obtained a work diary, whichever occurs first, or
(c)
if the driver is working under BFM hours in any other circumstance or under AFM hours—for 14 days after the commencement of this clause or until the driver has obtained a work diary, whichever occurs first.
(2)
A driver who is using a logbook under subclause (1) must comply with Part 4 of the repealed Regulation as if that Part continued to apply.
(3)
If a driver is working under the hours specified in a Fatigue Management Scheme exemption under the repealed Regulation (as permitted by clause 145 (Period of grace for certain drivers)), the driver may continue to use a document specified in that
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exemption as if it was a work diary for the purposes of this Part for the period specified in that clause or until the exemption is cancelled.
(4) For the purposes of this section:
(a) a reference in clause 81 (Information that record keeper must record) to a work diary is to be read as if it was a reference to the logbook, and (b) if the driver is working under BFM hours (as permitted by clause 145 (Period of grace for certain drivers))—the driver’s employer is the record keeper for the purposes of clause 81, and (c) reference in clause 93 (Issue of written work diaries) to an existing written work diary is to be read as if it was a reference to the logbook. 150 Record keeping obligations continue
An obligation on an employer or a self-employed driver to keep copies of a driver’s driving records made under the repealed Regulation continues for 12 months after the commencement of this clause as if clause 61 or 62 of the repealed Regulation continued to apply.
Part 7 Heavy vehicle speeding compliance Division 1 Object 151 Object
(1)
The object of this Part is to improve road safety and compliance with road safety laws by imposing responsibility in relation to speeding by heavy vehicles on those whose business activities influence the conduct of the drivers of those vehicles.
(2) For the purposes of that object, this Part:
(a)
requires those who are most directly responsible for the operation of a heavy vehicle to take reasonable steps to ensure that their activities do not cause the driver to exceed speed limits, and
(b)
requires anyone who schedules the activities of a heavy vehicle, or its driver, to take reasonable steps to ensure that the schedule of the vehicle and the driver does not cause the driver to exceed speed limits, and
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(c) requires heavy vehicle loading managers to take reasonable steps to ensure that the loading or unloading arrangements for a vehicle do not cause the driver of the vehicle to exceed speed limits, and (d) requires certain persons who consign goods for transport by heavy vehicle, or who receive such goods, to take reasonable steps to ensure that the terms of consignment of those goods do not cause heavy vehicle drivers to exceed speed limits, and (e) forbids anyone from asking a heavy vehicle driver to exceed speed limits and from entering into any agreement that causes a heavy vehicle driver to exceed speed limits. Note. This Part does not impose any obligations on employed drivers. Drivers of heavy vehicles are required to obey speed limits imposed under the Australian Road Rules, or as a condition of a permit or exemption that applies to a vehicle. Penalties on drivers for failing to comply with speed limits include demerit points, licence suspension, cancellation or disqualification, and fines.
152 Definitions
In this Part:
consignee has the same meaning as it has in section 20 of the Act.
consignor has the same meaning as it has in section 20 of the Act.
driver means the driver of a heavy vehicle and includes anemployed driver and a self-employed driver.
Note. Driver is defined in the Act.
employed driver means a driver who is employed by someone
else to drive a heavy vehicle.
employer means a person who engages someone else to drive a
heavy vehicle under a contract of employment, apprenticeship ortraining.
Note. Example of an employer—A labour hire company.
Note. Heavy vehicle is defined in the Act.
loading manager means a person who:
(a) manages, or who is responsible for the operation of, a premises at which usually on a business day at least 5 heavy vehicles are loaded with goods for transport, or have goods that the vehicles have transported unloaded, or (b) directly or indirectly supervises, manages or controls the loading or unloading of heavy vehicles at such a premises. Note. Examples of a loading manager—A company that runs, or a site manager for, a distribution centre.
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Note. Example of calculation of vehicle numbers—At a premises on a usual business day, 3 heavy vehicles are loaded with goods, and 3 other heavy vehicles have goods that have been transported to the premises unloaded. The manager of the premises is a loading manager because at least 5 vehicles are usually loaded or unloaded at the premises on a business day.
operator, in relation to a regulated heavy vehicle, means 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,
but does not include a person merely because the person:
(c) owns the vehicle or combination, or (d) drives the vehicle or combination, or (e)
maintains, or arranges for the maintenance of, the vehicle or combination, or
(f) arranges for the registration of the vehicle. party in the chain of responsibility in relation to a heavy vehicle,
means any of the following persons:
(a) the employer of the driver of the vehicle, (b) the prime contractor of the driver, (c) the operator of the vehicle, (d) each scheduler of goods or passengers for transport by the vehicle, and each scheduler of its driver, (e) each loading manager of goods for transport by the vehicle, (f) each consignor of goods for transport by the vehicle to whom Subdivision 4 of Division 2 applies, (g) each consignee of goods for transport by the vehicle to whom Subdivision 4 of Division 2 applies. prescribed business means business that falls within one or more of the following Divisions recognised in the Australian and New Zealand Standard Industrial Classification (ANZSIC), 2006 edition (Australian Bureau of Statistics publication, Catalogue No 1292.0):
(a) Agriculture, Forestry and Fishing (Division A), (b) Mining (Division B), (c) Manufacturing (Division C), (d) Construction (Division E),
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(e) Wholesale Trade (Division F), (f) Retail Trade (Division G), (g) Accommodation and Food Services (Division H), (h) Transport, Postal and Warehousing (Division I), (i) Information, Media and Communications (Division J),
(j) Renting, Hiring and Real Estate Services (Division L), (k) Arts and Recreation Services (Division P). prime contractor means a person who engages someone else to
drive a regulated heavy vehicle under a contract for services.Note. Example of a prime contractor—A logistics business that engages a subcontractor to transport goods.
scheduler means a person who:
(a) schedules a driver’s work or rest time, or (b) schedules the transport of passengers or goods by road. self-employed driver means a driver who is not an employed
driver.speed limit includes the following:
(a) a sign-posted speed limit, (b) a speed limit specified by legislation, (c) a speed limit that applies to a particular vehicle, (d) a prohibition on travelling between 2 places in less than a specified time. 153 Intention irrelevant in determining causation
For the purposes of this Part, a person can cause something to happen even though the person had no intention of causing that thing to happen.
154 Cause includes “contribute to causing” and “encourage”
For the purposes of this Part, a reference to causing a thing includes a reference to contributing to causing the thing, and to encouraging the thing.
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Division 2 Specific duties and offences Subdivision 1 Duties on employers, prime contractors
and operators155 Duty concerning business practices
(1) This clause applies to:
(a) the employer of an employed driver of a vehicle, and (b)
the prime contractor of a self-employed driver of a vehicle, and
(c)
the operator of a heavy vehicle if the driver of the vehicle is to make a journey in the vehicle for the operator.
(2)
The employer, prime contractor and operator each must take all reasonable steps to ensure that their business practices will not cause, by act or omission, the driver to exceed any speed limit that applies to the vehicle.
Maximum penalty:
(a)
in the case of an individual—50 penalty units (in the case of a first offence) and 100 penalty units (in the case of a second or subsequent offence), or
(b)
in the case of a corporation—125 penalty units (in the case of a first offence) and 250 penalty units (in the case of a second or subsequent offence).
Note. Examples of some reasonable steps that can be taken:
•
regular consultation with other parties in the chain of responsibility, unions and industry associations to address compliance issues
• reviewing driving, work and trip records •
a program to report and monitor (for instance, by GPS tracking) incidents of speeding, and related risks and hazards
•
training and information for drivers, staff and parties in the chain of responsibility about speeding
•
regular maintenance of vehicle components that relate to complying with speed limits (for instance, speedometer, engine management system and speed limiters).
(3)
In this clause, business practices means the practices of the employer, prime contractor or operator in running their businesses, and includes the following:
(a) the operating policies and procedures of the business,
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(b)
the human resource and contract management arrangements of the business (including the method that driver remuneration is calculated),
(c) arrangements for managing safety. (4) The employer must not cause the driver to drive the vehicle
unless:
(a) the employer has complied with subclause (2), and (b) the employer, after making reasonable inquiries, is satisfied that the scheduler has complied with Subdivision 2. Maximum penalty:
(a) in the case of an individual—20 penalty units (in the case of a first offence) and 50 penalty units (in the case of a second or subsequent offence), or (b) in the case of a corporation—75 penalty units (in the case of a first offence) and 125 penalty units (in the case of a second or subsequent offence). (5) The prime contractor and operator each must not cause the driver
to drive the vehicle unless:
(a) the prime contractor or operator, as the case may be, has complied with subclause (2), and (b) the prime contractor or operator, after making reasonable inquiries, is satisfied that the scheduler has complied with Subdivision 2. Maximum penalty:
(a) in the case of an individual—20 penalty units (in the case of a first offence) and 50 penalty units (in the case of a second or subsequent offence), or (b) in the case of a corporation—75 penalty units (in the case of a first offence) and 125 penalty units (in the case of a second or subsequent offence). 156 Duty to ensure offences are not committed
(1) In this clause:
speeding offence means an occurrence in which the driver of a
vehicle drives the vehicle in excess of any speed limit that applies
to the vehicle.(2) This clause applies to:
(a) the employer of an employed driver of a vehicle, and
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(b)
the prime contractor of a self-employed driver of a vehicle, and
(c)
the operator of a heavy vehicle if the driver of the vehicle is to make a journey in the vehicle for the operator.
(3) A person to whom this clause applies commits an offence if, at any time that a driver of a vehicle, or a vehicle, is subject to the person’s control, the driver commits a speeding offence while driving the vehicle. Maximum penalty:
(a) in relation to a level 1 offence: (i) in the case of an individual—10 penalty units, or
(ii) in the case of a corporation—50 penalty units, or
(b) in relation to a level 2 offence:
(i)
in the case of an individual—20 penalty units (in the case of a first offence) and 50 penalty units (in the case of a second or subsequent offence), or
(ii)
in the case of a corporation—75 penalty units (in the case of a first offence) and 125 penalty units (in the case of a second or subsequent offence), or
(c) in relation to a level 3 offence:
(i)
in the case of an individual—50 penalty units (in the case of a first offence) and 100 penalty units (in the case of a second or subsequent offence), or
(ii)
in the case of a corporation—125 penalty units (in the case of a first offence) and 250 penalty units (in the case of a second or subsequent offence).
(4)
Despite subclause (3), a person is not liable under that subclause if the vehicle was a combination, and neither the driver nor the towing vehicle was subject to the person's control.
(5) The levels of offence referred to in subclause (3) are to be
determined using the following table:
Speed limit Type of heavy Penalty level
at the place vehicle Recorded Recorded
where the speed of speed of speeding <15 km/h ≥ 15 km/h offence above speed above speed occurred limit limit
50–60 km/h All Level 1 Level 1
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Speed limit Type of heavy Penalty level
at the place vehicle Recorded Recorded where the speed of speed of speeding <15 km/h ≥ 15 km/h offence above speed above speed occurred limit limit 70–80 km/h All Level 1 Level 2 90 km/h Road trains Level 2 Level 3 (where speed
limited to
90 km/h)90 km/h Non-road trains Level 1 Level 2 100 km/h Non-road train Level 2 Level 3 heavy
combinations>100 km/h Non-combination Level 2 Level 3 heavy vehicles
(6) It is a defence to an offence under this clause if the accused
person establishes that:
(a) the person did not know, and could not reasonably be expected to have known, of the conduct that constituted the offence, and (b) either: (i) the person took all reasonable steps to prevent that conduct from occurring, or
(ii) there were no steps that the person could reasonably have been expected to have taken to prevent that conduct from occurring.
(7) For the purposes of this clause:
(a)
it is irrelevant whether the driver has been, or will be, charged with the speeding offence, or has been, or will be, convicted of the speeding offence, and
(b)
evidence that the driver has been convicted of the speeding offence is evidence that the offence occurred at the time and place, and in the circumstances, specified in the charge that resulted in the conviction, and
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(c)
evidence that the driver has paid the infringement penalty sought by an infringement notice for a speeding offence is evidence that the offence occurred at the time and place, and in the circumstances, specified in the infringement notice.
Subdivision 2 Duties on schedulers 157 Duty concerning driver’s schedule
(1) This clause applies to the scheduler of transport by a heavy
vehicle, or of a driver of a heavy vehicle.(2)
The scheduler must take all reasonable steps to ensure that a driver’s schedule for driving the vehicle will not cause, by act or omission, the driver to exceed any speed limit that applies to the vehicle.
Maximum penalty:
(a)
in the case of an individual—50 penalty units (in the case of a first offence) and 100 penalty units (in the case of a second or subsequent offence), or
(b)
in the case of a corporation—125 penalty units (in the case of a first offence) and 250 penalty units (in the case of a second or subsequent offence).
Note. Examples of some reasonable steps that can be taken:
• consulting drivers about their schedules and work requirements •
taking account of the average speed that can be lawfully travelled on scheduled routes
• allowing for traffic conditions or other delays in schedules • contingency planning in relation to schedules.
(3) The scheduler must not cause the driver to drive the vehicle
unless:
(a) the scheduler has complied with subclause (2), and (b) the driver’s schedule for driving the vehicle allows: (i) for compliance with all speed limits applying to the vehicle, and
(ii) for the driver to take all required rest breaks (in accordance with all laws regulating the work and rest hours of the driver), and
(iii) for traffic conditions and other delays that could reasonably be expected.
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Note. 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.
Maximum penalty:
(a)
in the case of an individual—20 penalty units (in the case of a first offence) and 50 penalty units (in the case of a second or subsequent offence), or
(b)
in the case of a corporation—75 penalty units (in the case of a first offence) and 125 penalty units (in the case of a second or subsequent offence).
Subdivision 3 Duties on loading managers 158 Duty on loading managers
A loading manager must take all reasonable steps to ensure that the arrangements for loading and unloading heavy vehicles at the premises in respect of which the loading manager is the loading manager will not cause, by act or omission, the driver of a vehicle to exceed any speed limit that applies to the vehicle.
Maximum penalty:
(a)
in the case of an individual—50 penalty units (in the case of a first offence) and 100 penalty units (in the case of a second or subsequent offence), or
(b)
in the case of a corporation—125 penalty units (in the case of a first offence) and 250 penalty units (in the case of a second or subsequent offence).
Note. Examples of some reasonable steps that can be taken:
•
reviewing loading and unloading times and delays at loading and unloading places
•
identifying potential loading and unloading bottlenecks in consultation with drivers and other parties in the chain of responsibility
•
ensuring that timeslots for loading or unloading can be relied upon.
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| Speeding Compliance) Regulation 2008 | |
| Amendments | Schedule 1 |
Subdivision 4 Duties on certain consignors and
consignees159 Consignors to whom this Subdivision applies
This Subdivision applies only to a consignor who engages a particular operator of a vehicle or combination, either directly or indirectly or through an agent or other intermediary, to transport goods on the consignor’s behalf by road for commercial purposes.
160 Consignees to whom this Subdivision applies
This Subdivision applies only to a consignee:
(a) who, with the consignee’s authority, has been named or otherwise identified in the relevant transport documentation as the intended consignee of goods that are transported by road by a particular operator of a heavy vehicle or combination, and (b) who knows, or who ought reasonably to have known, that the goods were to be transported by road. 161 Duties on consignors and consignees
(1)
A consignor or consignee to whom this Subdivision applies each must take all reasonable steps to ensure that the terms of consignment (such as delivery times) will not cause, by act or omission, the driver of the vehicle that is to transport the goods to exceed any speed limit that applies to the vehicle.
Maximum penalty:
(a)
in the case of an individual—50 penalty units (in the case of a first offence) and 100 penalty units (in the case of a second or subsequent offence), or
(b)
in the case of a corporation—125 penalty units (in the case of a first offence) and 250 penalty units (in the case of a second or subsequent offence).
Note. Examples of some reasonable steps that can be taken:
•
ensuring contractual arrangements and documentation relating to the consignment and delivery of goods enable speeding compliance
•
contingency planning in relation to consignments and delivery times
•
regular consultation with other parties in the chain of responsibility, unions and industry associations to address compliance issues.
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| Schedule 1 | Amendments |
(2)
The consignor and consignee each must also take all reasonable steps to ensure that the terms of consignment (such as delivery times) will not cause, by act or omission, the employer of an employed driver, the prime contractor of a self-employed driver or the operator of the heavy vehicle to cause the driver to exceed any speed limit that applies to the vehicle.
Maximum penalty:
(a)
in the case of an individual—50 penalty units (in the case of a first offence) and 100 penalty units (in the case of a second or subsequent offence), or
(b)
in the case of a corporation—125 penalty units (in the case of a first offence) and 250 penalty units (in the case of a second or subsequent offence).
(3)
A consignor or consignee to whom this Subdivision applies each must not make a demand that affects, or that may affect, a time in a schedule for the transport of the consigned goods unless the consignor or consignee:
(a) has complied with subclauses (1) and (2), and (b)
is satisfied, after making reasonable inquiries, that the making of the demand will not cause a person to fail to comply with Subdivision 2.
Maximum penalty:
(a)
in the case of an individual—20 penalty units (in the case of a first offence) and 50 penalty units (in the case of a second or subsequent offence), or
(b)
in the case of a corporation—75 penalty units (in the case of a first offence) and 125 penalty units (in the case of a second or subsequent offence).
Subdivision 5 Duty to assess and manage risk of
speeding162 Duty to assess and manage risk of speeding
(1) This clause applies to:
(a)
the employer of an employed driver of a heavy vehicle, and
(b)
the prime contractor of a self-employed driver of a heavy vehicle, and
(c)
the operator of the heavy vehicle if the driver is to make a journey for the operator, and
| Road Transport (General) Amendment (Heavy Vehicle Driver Fatigue and | 2008 No 429 |
| Speeding Compliance) Regulation 2008 | |
| Amendments | Schedule 1 |
(d) the scheduler of:
(i) transport by a heavy vehicle, or (ii) a driver of a heavy vehicle, and (e)
the loading manager of goods for transport by a heavy vehicle, and
(f)
the consignor of goods for transport by a regulated heavy vehicle, who carries on business of which a substantial part is prescribed business, and
(g)
the consignee of goods for transport by a regulated heavy vehicle, who carries on business of which a substantial part is prescribed business.
(2) A person to whom this clause applies must:
(a) identify and assess the aspects of the activities of the person, and the driver, that may cause the driver to exceed a speed limit, and (b) for each aspect identified and assessed under paragraph (a), identify and assess: (i) the risk of the aspect causing the driver to exceed a speed limit, and
(ii) if there is a risk of the aspect causing the driver to exceed a speed limit,—the measures the person may take to eliminate the risk or, if it is not reasonably practicable to eliminate the risk, to control the risk, and
(c)
carry out the identification and assessment referred to in paragraphs (a) and (b):
(i) at least annually, and (ii)
after each event that indicated the way the activities of the person or driver were being carried out have caused, or may cause, the driver to exceed a speed limit, and
(d)
take the measures identified and assessed under paragraph (b) (ii), and
(e)
document the actions taken under paragraphs (a)–(d) and retain that documentation for at least 3 years.
Maximum penalty:
(a)
in the case of an individual—20 penalty units (in the case of a first offence) or 40 penalty units (in the case of a second or subsequent offence), and
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| Schedule 1 | Amendments |
(b)
in the case of a corporation—100 penalty units (in the case of a first offence) or 200 penalty units (in the case of a second or subsequent offence).
(3) It is a defence to any proceedings against a person for an offence
against subclause (2) if the person proves that:
(a)
it was not reasonably practicable for the person to comply with that subclause, or
(b)
the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.
Subdivision 6 Certain requests, contracts etc prohibited 163 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 the driver to exceed any speed limit while driving a heavy vehicle.
Maximum penalty:
(a) in the case of an individual—100 penalty units, or (b) in the case of a corporation—250 penalty units. Note. Example of a requirement that contravenes this clause—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 the driver is required to take.
164 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 the driver or any other driver to exceed any speed limit while driving a heavy vehicle.
Maximum penalty:
(a) in the case of an individual—100 penalty units, or (b) in the case of a corporation—250 penalty units. (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
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| Speeding Compliance) Regulation 2008 | |
| Amendments | Schedule 1 |
an incentive for a party in the chain of responsibility to cause a
driver to exceed any speed limit while driving a heavy vehicle.Maximum penalty:
(a) in the case of an individual—100 penalty units, or (b) in the case of a corporation—250 penalty units.
Division 3 Compliance and enforcement provisions Subdivision 1 Reasonable steps 165 Matters court may consider for deciding whether person took all reasonable steps
A 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 aspect or risk that the person was attempting to, or should have been attempting to, address, and
(b) the likelihood of a risk eventuating, and (c)
the degree of harm that would result if a risk did eventuate, and
(d)
if a driver has been speeding—the circumstances of the offence (for example, the risk category that the offence belongs to), and
(e)
the abilities, experience, expertise, knowledge, qualifications and training that the person, or the person’s agent or employee, had or ought reasonably to have had, and
(f)
the availability and suitability of ways to eliminate, prevent or reduce an aspect, or to eliminate a risk or to minimise the likelihood of a risk eventuating, and
(g)
the cost of eliminating a risk or minimising the likelihood of a risk eventuating.
Subdivision 2 Evidential matters 166 Commission of speeding offence is irrelevant to Division 2 prosecutions
In a prosecution under Division 2, it is not necessary to prove that a driver exceeded a speed limit.
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167 Provisions relating to first offences and second or subsequent offences
(1) This clause determines whether, for the purposes of this Part, an
offence is:
(a) a first offence, or (b) a second or subsequent offence. (2) A person is found guilty of a second or subsequent offence if, and only if, the occasion when the second or subsequent offence occurred:
(a) was different from the occasion when the first offence for which the person was found guilty occurred, and (b) was within 3 years of the occasion of the first offence. (3) The order in which the offences were committed is irrelevant. (4) It is also irrelevant whether or not the offences were subject to the
same penalties.(5) If the court is satisfied that a person is guilty of an offence but cannot determine (from the information available to the court) whether the offence is a first offence for which the person was found guilty, the court may only impose a penalty for the offence as if it were a first offence. (6) When determining whether a person has previously been found guilty of an offence under this Part, the court must have regard to a finding of guilt for an offence committed under corresponding provisions of a corresponding law.
[4] Existing Parts 6 and 7
Renumber existing Parts 6 and 7 as Parts 8 and 9, respectively, and existing clauses 39–42 as clauses 168–171, respectively, and clauses 44–52 as clauses 172–181, respectively.
[5] Schedule 1 Fees
Omit “and 47” and “clause 47”.
Insert instead “and 175”and “clause 175”, respectively.[6] Schedule 2 Authorised officers
Omit “(clause 39)”. Insert instead “(clause 168)”.
[7] Schedule 3 Penalty notice offences
Omit “(clause 40)”. Insert instead “(clause 171)”.
| Road Transport (General) Amendment (Heavy Vehicle Driver Fatigue and | 2008 No 429 |
| Speeding Compliance) Regulation 2008 | |
| Amendments | Schedule 1 |
[8] Schedule 3
Omit the matter relating to the Road Transport (Safety and Traffic
Management) (Driver Fatigue) Regulation 1999.[9] Schedule 3
Insert in appropriate order:
Road Transport (General) Regulation 2005
Column 1 Column 2 Column 3 Provision Authorised Penalty officer Clauses 49 (3) and (4), 50 (3), 51 (4), 52 (2), 73 (3), 76–79, 81 (2), (3), (5)–(7) and (9)–(13), 106, 107 (4), 108, 112, 113 (4), 114 and 121:
(a) in relation to an individual: Class 1, 2, 4 Level 5 (b) in relation to a corporation: Class 1, 2, 4 Level 13 Clauses 64–66, 68, 70–72 and 117:
(a) in relation to a minor risk offence: Class 1, 2, 4 Level 4 (b) in relation to a substantial risk offence: Class 1, 2, 4 Level 7 Clauses 155 (4) and (5), 157 (3) and 161 (3):
(a) in relation to an individual: Class 1, 2, 4 Level 9 (b) in relation to a corporation: Class 1, 2, 4 Level 17 Clause 156 (3):
(a) in relation to an individual:
(i) in relation to a Level 1 offence: Class 1, 2, 4 Level 6 (ii) in relation to a Level 2 offence: Class 1, 2, 4 Level 9 (b) in relation to a corporation:
(i) in relation to a Level 1 offence: Class 1, 2, 4 Level 13 (ii) in relation to a Level 2 offence: Class 1, 2, 4 Level 17
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