National Transport Commission (Model Legislation - Heavy Vehicle Driver Fatigue) Regulations 2007

National Transport Commission (Model Legislation—Heavy Vehicle Driver Fatigue) Regulations 2007

Select Legislative Instrument No. 318, 2007

made under the

National Transport Commission Act 2003

Compilation No. 1

Compilation date:   5 March 2016

Includes amendments up to: F2016L00170

Registered:    5 July 2016

About this compilation

This compilation

This is a compilation of the National Transport Commission (Model Legislation—Heavy Vehicle Driver Fatigue) Regulations 2007 that shows the text of the law as amended and in force on 5 March 2016 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.  

Contents

1 Name of Regulations

2 Commencement

3 Road transport legislation—heavy vehicle driver fatigue

Schedule 1—Text of the draft Bill for the Road Transport—Heavy Vehicle Driver Fatigue Act 2007

Endnotes

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

1  Name of Regulations

  These Regulations are the National Transport Commission (Model Legislation—Heavy Vehicle Driver Fatigue) Regulations 2007.

2  Commencement

  These Regulations commence on the day after they are registered.

3  Road transport legislation—heavy vehicle driver fatigue

  For section 7 of the National Transport Commission Act 2003 (the NTC Act), Schedule 1 sets out model legislation, in the form of a Bill for an Act, about heavy vehicle driver fatigue.

Note 1: The model legislation set out in Schedule 1 does not have the force of law—see paragraph 7(2)(a) of the NTC Act.

Note 2: These Regulations must be made in accordance with the Agreement—see subparagraph 3(b)(ii) of the NTC Act.

Note 3: These Regulations are not subject to disallowance—see regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003.

Note 4: These Regulations are not subject to sunsetting—see regulations made for the purposes of paragraph 54(2)(b) of the Legislation Act 2003.

Note 5: The text set out in Schedule 1 is that of a draft Bill prepared for the National Transport Commission and approved by the Australian Transport Council on 14 February 2007, but never actually enacted.

Schedule 1—Text of the draft Bill for the Road Transport—Heavy Vehicle Driver Fatigue Act 2007

Drafting note: This Bill has been drafted on the understanding that it will be made in each jurisdiction in conjunction with the equivalent of the C & E Act.

Contents

Page

Part 1—Preliminary

Division 1.1—Introductory

1 Name of this Act

2 Commencement

3 Main purpose of this Act

4 Outline of the main features of this Act

Division 1.2—Interpretation

5 Definitions—the dictionary etc

6 Examples

7 Notes

8 Act to be read with Compliance and Enforcement Act

9 Relationship with other legislation and legal instruments

Division 1.3—How this Act applies

Subdivision 1.3.1—Regulated heavy vehicles

10 What is a regulated heavy vehicle

Subdivision 1.3.2—Who this Act applies to

11 Who is a driver

12 Who are the parties in the chain of responsibility

13 Who is an employer

14 Who is a prime contractor

15 Who is an operator

16 Who is a scheduler

17 Who is a consignor

18 Who is a consignee

19 Who is a loading manager

20 Who is a loader

21 Who is an unloader

Subdivision 1.3.3—Where this Act applies

22 Jurisdictions and zones

Division 1.4—What does reasonable steps mean

23 What are reasonable steps

24 What is the reasonable steps defence

25 Deciding whether persons ought reasonably to have known

Part 2—Duties relating to fatigue

Division 2.1—What is fatigue

26 What is fatigue

27 What is impaired by fatigue

Division 2.2—Duties to avoid and prevent fatigue

28 Driver’s duty to avoid driver fatigue

29 Duty on parties in the chain of responsibility to prevent driver fatigue

Division 2.3—Additional duties on certain parties in the chain of responsibility

30 Duties on employers, prime contractors and operators

31 Duties on schedulers

32 Duties on consignors and consignees

33 Duties on loading managers

Division 2.4—Certain requests, contracts etc prohibited

34 Certain requests etc prohibited

35 Certain contracts etc prohibited

Part 3—Duties relating to work and rest times

Division 3.1—Key concepts for this Part

Subdivision 3.1.1—Work and rest time

36 What is work/rest hours option

37 What is work time

38 What is rest time

39 What is a work/rest change

Subdivision 3.1.2—Counting time

40 Counting time, including work and rest time

41 Counting time within the participating zone

42 Counting time from outside the participating zone

Division 3.2—Standard hours

43 What this Division is about

44 Standard hours—solo drivers

45 Standard hours—solo drivers of buses

46 Standard hours—two‑up drivers

47 Defence relating to short rest breaks

Division 3.3—BFM hours

48 What this Division is about

49 BFM hours—solo drivers

50 Defence for solo drivers relating to split rest breaks

51 BFM hours—two‑up drivers

Division 3.4—AFM hours

52 AFM hours

Division 3.5—Changing work/rest hours option

53 Changing work/rest hours option

Part 4—Duties relating to record keeping

Division 4.1—Key concepts for this Part

54 What is 100 km work and 100+ km work

55 What is a driver’s base and record location

Division 4.2—Work diary requirements

56 Driver must carry work diary

57 Information that driver must record in work diary

58 How driver must record information in work diary

59 Destroyed, lost, stolen or malfunctioning work diaries

60 Malfunctioning odometers

61 Duty on employers, prime contractors, operators and schedulers to ensure driver compliance

Division 4.3—Records relating to drivers

62 Information that record keeper must record

Division 4.4—False work records etc.

63 Definitions for this Division

64 False entries

65 Keeping 2 work diaries simultaneously prohibited

66 Possession of purported work records etc prohibited

67 Defacing or changing work records etc prohibited

68 False representation of work records prohibited

69 Making entries in someone else’s work records prohibited

70 Destruction of certain work records prohibited

71 Tampering with electronic work diaries prohibited

Division 4.5—Written work diaries

72 Form of written work diaries

73 Issue of written work diaries

Division 4.6—Electronic work diaries

74 Approval of electronic work diaries

75 Variation or cancellation of approval—on application

76 Variation or cancellation of approval—without application

Part 5—Accreditation and exemptions

Division 5.1—Accreditation

Subdivision 5.1.1—What is an accreditation

77 What is an accreditation

Subdivision 5.1.2—BFM accreditation

78 Applying for BFM accreditation

79 Granting BFM accreditation

80 Conditions of BFM accreditation

81 Information that operator must record

82 Operator must advise of change or end of accreditation

Subdivision 5.1.3—AFM accreditation

83 Applying for AFM accreditation

84 Granting AFM accreditation

85 Conditions of AFM accreditation

86 Driver must carry AFM accreditation details

87 Information that operator must record

88 Operator must advise of change or end of accreditation

Division 5.2—Exemptions

Subdivision 5.2.1—Exemptions for emergency services

89 Exemptions for emergency services

Subdivision 5.2.2—Other exemptions

90 What is an exemption

91 Work/rest hours exemptions

92 Work diary exemptions

93 Applying for an exemption

94 Granting an exemption

Division 5.3—Variation, suspension or cancellation of accreditation or exemptions

Subdivision 5.3.1—On application of holder

95 Variation or cancellation of accreditation or exemption—on application

Subdivision 5.3.2—Without application of holder

96 Grounds for variation—without application

97 Grounds for cancellation—without application

98 Variation or cancellation of accreditation or individual exemption—without application

99 Immediate suspension of accreditation or an individual exemption in public interest

100 Variation or cancellation of an exemption granted to a class of persons

Subdivision 5.3.3—Return of accreditation certificate or exemption

101 Return of accreditation certificate or exemption

Division 5.4—Replacement of lost etc accreditation certificates or exemptions

102 Replacement of lost etc accreditation certificates or exemptions

Division 5.5—Offences relating to accreditation etc

103 Offence to falsely represent that accreditation etc held

104 Offences relating to auditors

Part 6—Compliance and enforcement provisions

Division 6.1—Risk categorisation of offences

105 Categories of offences

106 How is an offence category specified

Division 6.2—Enforcement powers

107 Powers of authorised officers or police officers in relation to fatigue and work/rest hours breaches

108 Other enforcement powers

109 Duty on authorised officers and police officers to annotate driver’s work diary

Division 6.3—Penalties

110 Penalties

111 Provisions relating to first offences and second or subsequent offences

Part 7—Decision‑making provisions

Division 7.1—What is a decision

112 What is a decision

Division 7.2—Who may make a decision

113 Authority may delegate powers

114 Fatigue Authorities Panel

Division 7.3—Referral and mutual recognition of decisions

115 Referral of matters to the Panel and other Authorities

116 Mutual recognition of certain decisions

117 Mutual recognition of other decisions

Division 7.4—Notification and recording of decisions

118 Notifying other Authorities of decisions

119 Register of decisions

Division 7.5—Reconsideration and review of decisions

120 Decisions that may be reconsidered and reviewed

121 Reconsideration of decisions

122 Review of decisions by <relevant jurisdiction tribunal or court>

Part 8—Miscellaneous

Division 8.1—Transitional provisions

123 TFMS applications

124 TFMS to BFM

125 TFMS to AFM

126 TFMS otherwise lapses

127 Applications for reconsideration by Authority

128 Applications for review by <relevant jurisdiction tribunal or court>

129 Exemption applications

130 Existing exemptions continue

131 Prosecution of offences that are undecided

132 Existing logbooks

133 Repeal

Division 8.2—Regulations

134 Regulations

Dictionary 

A Bill for an Act to provide in relation to heavy vehicle driver fatigue as part of a system of nationally consistent road transport laws

Enacting formula

Part 1—Preliminary

Division 1.1—Introductory

1  Name of this Act

  This Act is the Road Transport—Heavy Vehicle Driver Fatigue Act 2006.

2  Commencement

 (1) Section 1 and this section commence on gazettal.

 (2) The remaining provisions of this Act commences on a day or days specified by the Minister by notice in the Gazette.

3  Main purpose of this Act

  The main purpose of this Act is to provide for the safe management of the fatigue of drivers of regulated heavy vehicles while they are driving on a road.

4  Outline of the main features of this Act

 (1) This Act applies to:

 (a) drivers of regulated heavy vehicles; and

 (b) certain persons whose activities influence the conduct of drivers of regulated heavy vehicles in such a way as to affect the drivers’ fatigue when driving on a road.

Examples of subsection (1)(b)

• employers and prime contractors of drivers of regulated heavy vehicles

• operators of regulated heavy vehicles

• persons who schedule goods or passengers for transport by regulated heavy vehicles or who schedule drivers of regulated heavy vehicles

• consignors and consignees of goods for transport by regulated heavy vehicles

• loaders and unloaders of goods for transport by regulated heavy vehicles

• persons who manage or operate premises where regulated heavy vehicles are loaded or unloaded or who supervise the activities of loaders and unloaders

Note: It is the performance of any these functions, whether exclusively or occasionally, that determines whether a person falls within any of these definitions, rather than their job title or contractual description.

 (2) This Act, in Part 2 (Duties relating to fatigue), provides for general duties to avoid or prevent drivers from driving regulated heavy vehicles on a road while they are impaired by fatigue and for extra duties on certain parties in the chain of responsibility to do certain things to help drivers to comply with this Act.

 (3) This Act, in Part 3 (Duties relating to work and rest times), provides for 3 work/rest hours options for drivers, namely:

 (a) the standard hours for drivers (i.e. the standard work and rest times); and

 (b) the basic fatigue management scheme (the BFM scheme); and

 (c) the advanced fatigue management scheme (the AFM scheme); and

provides that parties in the chain of responsibility are liable for ensuring the driver complies with his or her relevant work/rest hours option.

 (4) This Act, in Part 4 (Duties relating to record keeping), provides for recording the work and rest times of drivers (amongst other things).

 (6) This Act, in Part 5 (Accreditation and exemptions), enables an operator to seek accreditation and a driver, employer, prime contractor or operator to seek an exemption from various requirements of this Act.

Division 1.2—Interpretation

5  Definitions—the dictionary etc

 (1) The dictionary at the end of this Act defines certain words and expressions, and includes references to certain words and expressions that are defined elsewhere in this Act (signpost definitions).

Example: The signpost definition ‘regulated heavy vehicle—see section 10(1)’ means that the expression regulated heavy vehicle is defined in section 10(1).

Note: The dictionary includes a signpost definition for a word or expression only if the word or expression is used in more than 1 section.

 (2) The dictionary is part of this Act.

 (3) A definition in this Act applies to each use of the word or expression in this Act, unless the contrary intention appears.

 (4) An expression used in this Act that is also used (whether or not defined) in the C & E Act has, unless the contrary intention appears, the same meaning in this Act as in that Act.

6  Examples

 (1) An example in this Act is part of this Act.

 (2) If this Act includes an example of the operation of a provision of the Act:

 (a) the example is not exhaustive; and

 (b) the example does not limit, but may extend, the meaning of the provision.

7  Notes

  A note in this Act is explanatory and is not part of the Act.

Drafting note: The interpretation legislation of some jurisdictions may already make provision for examples and notes consistent with sections 6 and 7.

8  Act to be read with Compliance and Enforcement Act

 (1) This Act is to be read as one with the C & E Act.

 (2) For the purposes of the C & E Act, this Act is to be taken to be a road law.

 (3) Any provision of the C & E Act that is relevant to complying with or enforcing a road law or that Act applies in relation to this Act unless the provision is only able to be applied in relation to a breach of a mass, dimension or load restraint requirement under that Act.

Example: Section 185 of the C & E Act makes void any term of a contract or agreement that purports to exclude, limit or modify the operation of that Act. This provision is able to be applied in relation to breaches other than breaches of a mass, dimension or load restraint requirement and therefore under this subsection it also applies in relation to this Act.

 (4) The regulations may make further provision about the application of provisions of the C & E Act to this Act.

9  Relationship with other legislation and legal instruments

  Nothing in this Act abrogates a provision of another law or legal instrument to the extent that the law or legal instrument is not inconsistent with this Act.

Examples of another law or legal instrument

• another law relating to fatigue or work/rest hours

• an industrial award that provides for fatigue management or sets out agreed work/rest hours

• a contract that provides for fatigue management or sets out agreed work/rest hours

Division 1.3—How this Act applies

Subdivision 1.3.1—Regulated heavy vehicles

10  What is a regulated heavy vehicle

 (1) A regulated heavy vehicle is:

 (a) a heavy truck; or

 (b) a bus.

Note: A regulated heavy vehicle is a sub‑category of heavy vehicle as defined in the C & E Act.

 (2) A heavy truck is:

 (a) a motor vehicle (except a bus or tram) with a GVM over 12 tonnes; or

 (b) a motor vehicle (except a bus or tram) that is part of a combination, if the total of the GVMs of the vehicles in the combination is over 12 tonnes.

 (3) A bus is a motor vehicle built mainly to carry people that seats over 12 adults (including the driver).

 (4) A regulated heavy vehicle does not include:

 (a) plant; or

 (b) a motor home.

 (5) Plant is a motor vehicle that:

 (a) is built, or permanently modified, primarily to operate as a machine or implement:

 (i) off‑road; or

 (ii) on a road‑related area; or

 (iii) on an area of road that is under construction; and

 (b) is not capable of carrying goods or passengers by road.

Example of what is plant

An agricultural machine, backhoe, bulldozer, excavator, forklift, front‑end loader, grader, tractor or a motor vehicle that is registered as a type P plant‑based special purpose vehicle.

Example of what is not plant

A truck‑mounted crane or truck‑mounted drilling rig.

 (6) A motor home is a rigid or articulated motor vehicle or combination that is built, or permanently modified, primarily for residential purposes, but does not include a motor vehicle only because it is constructed with a sleeper berth.

Drafting note: Implementing jurisdictions may vary the definition of regulated heavy vehicle to apply more broadly than provided for in this model legislation.

Subdivision 1.3.2—Who this Act applies to

11  Who is a driver

 (1) A reference to a driver is a reference to the driver of a regulated heavy vehicle and includes an employed driver and a self‑employed driver.

Note: Driver is defined in the C & E Act.

 (2) An employed driver is a driver who is employed by someone else to drive a regulated heavy vehicle.

 (3) A driver who is not an employed driver but is driving a regulated heavy vehicle is a self‑employed driver.

12  Who are the parties in the chain of responsibility

 (1) These people are parties in the chain of responsibility in relation to a regulated heavy vehicle:

 (a) the employer of the driver of the vehicle; and

 (b) the prime contractor of the driver; and

 (c) the operator of the vehicle; and

 (d) the scheduler of goods or passengers for transport by the vehicle, and the scheduler of its driver; and

 (e) the consignor of goods for transport by the vehicle; and

 (f) the consignee of goods for transport by the vehicle; and

 (g) the loading manager of goods for transport by the vehicle; and

 (h) the loader of goods on to the vehicle; and

 (i) the unloader of goods from the vehicle.

Note: It is the performance of any these functions, whether exclusively or occasionally, that determines whether a person falls within any of these definitions, rather than their job title or contractual description.

 (2) A person may be a party in the chain of responsibility in more than 1 capacity.

Example: A person may be an employer, operator and consignor at the same time in relation to a driver and be subject to duties in each of the capacities.

Note: Section 147 of the C & E Act also provides that a person may be liable for a breach in one or more capacities under the chain of responsibility.

13  Who is an employer

  An employer is a person who engages someone else to drive a regulated heavy vehicle under a contract of employment, apprenticeship or training.

Example of an employer

A labour hire company.

14  Who is a prime contractor

  A prime contractor is a person who engages someone else to drive a regulated heavy vehicle under a contract for services.

Example of a prime contractor

A logistics business that engages a subcontractor to transport goods.

15  Who is an operator

 (1) An operator of a regulated heavy vehicle is a person who is responsible for controlling or directing the operations of:

 (a) in the case of a vehicle (including a vehicle in a combination)—the vehicle; or

 (b) in the case of a combination—the towing vehicle in the combination.

 (2) A person is not an operator merely because:

 (a) the person owns a vehicle or combination; or

 (b) the person drives a vehicle or combination; or

 (c) the person maintains, or arranges for the maintenance of, a vehicle or combination; or

 (d) the person arranges for the registration of a vehicle.

16  Who is a scheduler

  A scheduler is:

 (a) a person who schedules a driver’s work or rest time; or

 (b) a person who schedules the transport of passengers or goods by road; or

 (c) a person who makes a demand that affects a time in a schedule.

Example of a person who makes a demand that affects a time in a schedule

The distribution manager for a retail chain or a loading agent or freight forwarder who sets a deadline for a delivery.

Example of a person who does not make a demand that affects a time in a schedule

A person who has arranged for goods to be couriered by a transport company as a ‘part load’ who has no control over the deadline for the delivery of the goods.

17  Who is a consignor

  A consignor of goods is:

 (a) a person who, with that person’s authority, is named or otherwise identified as the consignor of the goods in the transport documentation relating to the transport of the goods by road; or

 (b) a person who engages an operator of a vehicle or combination, either directly or indirectly or through an agent or other intermediary, to transport the goods by road; or

 (c) a person who has possession of, or control over, the goods immediately before the goods are transported by road; or

 (d) a person who loads a vehicle with the goods, for transport by road, at a place where goods in bulk are stored or temporarily held and that is unattended (except by a driver of the vehicle, a trainee driver or any person necessary for the normal operation of the vehicle) during loading; or

 (e) if paragraphs (a) to (d) do not apply to the person or anyone else, and the goods are imported into Australia—a person who imports the goods.

18  Who is a consignee

  A consignee of goods is:

 (a) a person who, with that person’s authority, is named or otherwise identified as the intended consignee of the goods in the transport documentation relating to the transport of the goods by road; or

 (b) a person who actually receives the goods after completion of their transport by road;

but does not include a person who merely unloads the goods.

19  Who is a loading manager

  A loading manager is:

 (a) a person who manages, or is responsible for the operation of, a site or premises where regulated heavy vehicles are loaded or unloaded; or

 (b) a person who supervises, manages or controls any activity undertaken by a loader or unloader.

Examples of a loading manager

A company that runs, or a site manager for, a distribution centre.

20  Who is a loader

  A loader of goods is:

 (a) a person who loads a vehicle or combination with goods for transport by road; or

 (b) a person who loads a vehicle or combination with a freight container (whether or not containing goods) for transport by road; or

 (c) without limiting the above, a person who loads a freight container already in or on a vehicle or combination with goods for transport by road; or

 (d) a person who supervises an activity mentioned in paragraph (a), (b) or (c); or

 (e) a person who manages or controls an activity mentioned in paragraph (a), (b), (c) or (d).

21  Who is an unloader

  An unloader of goods is:

 (a) a person who unloads a vehicle or combination with goods for transport by road; or

 (b) a person who unloads a vehicle or combination with a freight container (whether or not containing goods) for transport by road; or

 (c) without limiting the above, a person who unloads a freight container already in or on a vehicle or combination with goods for transport by road; or

 (d) a person who supervises an activity mentioned in paragraph (a), (b) or (c); or

 (e) a person who manages or controls an activity mentioned in paragraph (a), (b), (c) or (d).

Drafting note: Several of these definitions are exactly the same as in the C & E Act, while others are somewhat modified. Implementing jurisdictions may decide to reference the definitions directly in the C & E Act where they are the same.

Subdivision 1.3.3—Where this Act applies

22  Jurisdictions and zones

 (1) This jurisdiction is <insert name of jurisdiction>.

 (2) Another jurisdiction is a State or Territory other than this jurisdiction.

 (3) A participating jurisdiction is:

 (a) this jurisdiction; or

 (b) another jurisdiction, if that jurisdiction has a corresponding fatigue law.

 (4) The participating zone is all participating jurisdictions.

 (5) The non‑participating zone is all jurisdictions that are not participating jurisdictions.

Division 1.4—What does reasonable steps mean

23  What are reasonable steps

 (1) Where a provision of this Act requires a person to take all reasonable steps to do a specified thing or achieve a specified outcome, the person must:

 (a) identify and assess, on a regular basis, the risks to doing that thing or achieving that outcome; and

Examples of ways to identify and assess risks

• consulting drivers, other parties in the chain of responsibility, unions and industry associations about those risks

• reviewing driving or work schedules and work records, including opportunities for rest breaks

• reviewing loading and unloading times and delays at loading and unloading places

• reviewing contractual arrangements and documentation relating to the consignment and delivery of goods

• regular health and safety audits

• regularly assessing driver fitness for duty

• analysing injury and incident reports

 (b) manage those risks.

 (2) Managing a risk means:

 (a) taking reasonable steps to eliminate the risk; or

 (b) if it is not reasonably practicable to eliminate or prevent the risk—taking reasonable steps to reduce the risk, or to minimise the likelihood of the risk eventuating.

Examples of ways to manage risks

• workplace procedures and policies that relate to fatigue and compliance with work/rest hours

• contingency planning in relation to fatigue and work/rest hours

• a program to report and monitor fatigue‑related incidents, risks and hazards

• a program for assessing driver fitness for duty

• training and information for drivers, staff and parties in the chain of responsibility about fatigue and compliance with work/rest hours

• appropriate supervision and management of drivers, staff and parties in the chain of responsibility

• scheduling arrangements that take account of fatigue risks and work/rest hours

• allowing for traffic or other delays in scheduling

• a system for giving drivers sufficient notice of schedule changes

• a system to maintain equipment, work systems and work records

• compliance assurance conditions in relevant commercial arrangements with other parties in the chain of responsibility

• avoiding incentives or demands in commercial arrangements that may cause, permit, encourage or contribute to fatigue or breaches of work/rest hours

• a system for monitoring and remedying problems related to fatigue and work/rest hours

Note: Section 185 of the C & E Act voids any term of a contract or agreement that purports to exclude, limit or modify the operation of that Act. This section also applies to this Act—see section 6 above.

 (3) The court may have regard to anything that it considers to be relevant when it is deciding whether things that the person did, or did not do, were reasonable steps, including:

 (a) the nature of the risk that the person was attempting to, or should have been attempting to, address; and

 (b) the likelihood of that risk eventuating and the degree of harm that would result if it did eventuate; and

 (c) if a driver has driven while impaired by fatigue or in breach of the work/rest hours—the circumstances of the offence (e.g. the risk category that the offence belongs to); and

 (d) the degree to which the person (either personally or through an agent or employee) had the ability to eliminate, prevent or reduce the risk or to minimise likelihood of the risk eventuating; and

 (e) the experience, expertise and knowledge that the person, or the person’s agent or employee, had or ought reasonably have had; and

 (f) the availability and suitability of ways to eliminate, prevent or reduce the risk or to minimise the likelihood of the risk eventuating; and

 (g) the body of fatigue knowledge.

 (4) Evidence that the person had complied with a registered industry code of practice in relation to the matters that the offence relates to, is evidence that the person had taken reasonable steps.

Note: Industry codes of practice may be registered under section 179 (Registration of industry codes of practice) of the C & E Act or under a corresponding road law.

 (5) However, a person who is charged with an offence may rely on subsection (4) only if the person serves a notice of intention to do so on the prosecution at least 28 days before the day on which the hearing for the offence is to start.

24  What is the reasonable steps defence

  If a provision states that a person has the benefit of the reasonable steps defence for an offence, it is a defence to a charge for the offence for the person to prove that:

 (a) the person had taken all reasonable steps to prevent the contravention concerned; or

 (b) the person could not reasonably be expected to have taken any steps to prevent the contravention concerned.

Note: Section 23 explains what reasonable steps are.

25  Deciding whether persons ought reasonably to have known

  If, in a prosecution for an offence against this Act, it is relevant to prove that someone ought reasonably to have known something, the issue must be decided having regard to:

 (a) the person’s abilities, experience, expertise, knowledge, qualifications and training; and

 (b) the circumstances of the offence; and

 (c) any other matters prescribed by the regulations.

Part 2—Duties relating to fatigue

Division 2.1—What is fatigue

26  What is fatigue

 (1) Fatigue includes for example:

 (a) feeling sleepy; and

 (b) feeling physically or mentally tired, weary or drowsy; and

 (c) feeling exhausted or lacking energy; and

 (d) behaving in a way that is consistent with paragraph (a), (b) or (c).

Note: Fatigued has a meaning that corresponds to the meaning of fatigue in subsection (1). This is the effect of section 18A (Parts of speech and grammatical forms) of the Acts Interpretation Act 1901 of the Commonwealth.

Drafting note: The above note will need to be changed to refer to the appropriate interpretation legislation of the jurisdiction adopting the model Act.

 (2) When deciding whether a driver is fatigued, a court may take into account anything it considers is relevant, including for example:

 (a) what is commonly understood as being fatigued; and

 (b) the causes of fatigue; and

 (c) the signs of fatigue; and

 (d) the body of fatigue knowledge; and

 (e) any matter prescribed by the regulations.

 (3) A cause of fatigue is any factor that causes or contributes to a person’s fatigue while driving a regulated heavy vehicle on a road (whether or not the cause arises while the person is at work).

Examples of causes of fatigue

• physical or mental exertion

• long periods of time awake

• not enough sleep or not enough restorative sleep

• not enough rest breaks

• a person’s circadian rhythm (i.e. the “body clock”)

• environmental stress (e.g. heat, noise, vibrations)

• personal health

 (4) A sign of fatigue is a sign that a person was, is, or will be fatigued while driving a regulated heavy vehicle on a road (whether the sign manifests itself before, during or after work).

Examples of signs of fatigue

• a lack of alertness

• an inability to concentrate

• a reduced ability to recognise or respond to external stimuli

• poor judgement or memory

• making more mistakes than usual

• drowsiness, or falling asleep, at work (including micro sleeps)

• finding it difficult to keep the eyes open

• needing more frequent naps than usual

• not feeling refreshed after sleep

• excessive head nodding or yawning

• blurred vision

• mood changes, increased irritability or other changes to the person’s mental health

• changes to the person’s health or fitness

 (5) The body of fatigue knowledge includes any accreditation scheme, scientific knowledge or expert opinion, guidelines, standards or other knowledge that is relevant to preventing or managing the exposure of risk of fatigue, either at a workplace or on a road.

 (6) In proceedings for an offence under this Act, a statement by the complainant that, at a specified time or during a specified period, the complainant observed a specified driver exhibiting specified behaviour is evidence of that.

 (7) A statement by the complainant is a statement in a complaint or charge made by the person bringing the proceedings.

27  What is impaired by fatigue

 (1) A driver is impaired by fatigue if the driver is fatigued to the extent that he or she is incapable of driving a vehicle safely.

Note: Section 26(1) explains what fatigue and fatigued mean.

 (2) When deciding whether a driver was impaired by fatigue, a court may take into account anything it considers is relevant, including for example:

 (a) any relevant cause of fatigue or sign of fatigue that was evident, and the degree to which it may indicate that the driver was impaired by fatigue; and

 (b) any behaviour of the driver that may have resulted from being impaired by fatigue;

Examples

• the circumstances of any incident, crash or near miss

• poor driving judgement

• inattentive driving (e.g. drifting into other lanes or not changing gears smoothly)

 (c) the nature and extent of any physical or mental exertion by the driver; and

 (d) whether the driver was in breach of his or her work/rest hours.

Note: Sections 26(3) and (4) explain what a cause of fatigue and a sign of fatigue are.

 (3) A court may consider a driver to be impaired by fatigue even if the driver has complied with any requirements under this Act (e.g. the standard hours) or under any other legislation.

 (4) In proceedings for an offence under this Act, a statement by the complainant that, at a specified time or during a specified period, the complainant observed a specified driver exhibiting specified behaviour is evidence of that.

 (5) A statement by the complainant is a statement in a complaint or charge made by the person bringing the proceedings.

Division 2.2—Duties to avoid and prevent fatigue

28  Driver’s duty to avoid driver fatigue

 (1) A person must not drive a regulated heavy vehicle on a road while he or she is impaired by fatigue.

Penalty: the penalty for a severe risk offence.

Note 1: A driver may be impaired by fatigue even though he or she has complied with other requirements of this Act—see section 27(3).

Note 2: Section 106 explains how an offence is specified as a severe risk offence. Section 110 sets out the penalties for severe risk offences.

 (2) An offence against subsection (1) is an offence of absolute liability.

 (3) If, in relation to conduct at a particular time in relation to which a driver has been charged with an offence under subsection (1), the driver has been convicted of a prescribed driver offence under another law in relation to the same conduct, the court must discharge the proceedings against the driver.

 (4) If, in relation to conduct at a particular time in relation to which a driver has been charged with an offence under subsection (1), the driver has been convicted, the court must discharge any proceedings against the driver for a prescribed driver offence under another law in relation to the same conduct.

 (5) A prescribed driver offence under another law means an offence under another law of this jurisdiction prescribed by the regulations.

Drafting note: To address potential duplicity of offences that could result in double jeopardy, it is intended that jurisdictions will prescribe overlapping offences that may be committed contemporaneously as a result of a driver driving while impaired by fatigue, e.g. dangerous driving offences or employee offences under workplace safety legislation.

29  Duty on parties in the chain of responsibility to prevent driver fatigue

 (1) A party in the chain of responsibility in relation to a regulated heavy vehicle must take all reasonable steps to ensure that a person does not drive the vehicle on a road while the person is impaired by fatigue.

Penalty: the penalty for a critical risk offence.

Note 1: Section 12 explains who are parties in the chain of responsibility.

Note 2: Section 23 explains what reasonable steps are.

Note 3: Section 106 explains how an offence is specified as a critical risk offence. Section 110 sets out the penalties for critical risk offences.

 (2) An offence against subsection (1) is an offence of absolute liability.

 (3) For subsection (1) evidence that a party is complying with a prescribed fatigue duty under another law is evidence that the party had taken all reasonable steps in relation to the offence.

 (4) A prescribed fatigue duty under another law means a duty under another law of this jurisdiction or of another participating jurisdiction prescribed by the regulations and, in the case of an operator, includes the requirements of a BFM or AFM accreditation.

Drafting note: This provision enables implementing jurisdictions to recognise fatigue management obligations under other legislative regimes directed toward the management of fatigue risks, e.g. workplace safety laws, as evidence of reasonable steps in relation to this duty.

Division 2.3—Additional duties on certain parties in the chain of responsibility

30  Duties on employers, prime contractors and operators

 (1) This section applies to:

 (a) the employer of an employed driver of a regulated heavy vehicle; and

 (b) the prime contractor of a self‑employed driver of a regulated heavy vehicle; and

 (c) the operator of the regulated heavy vehicle if the driver is to make a journey for the operator.

 (2) The employer, prime contractor and operator each must take all reasonable steps to ensure that the schedule for the driver will not cause or permit the driver to:

 (a) drive while impaired by fatigue; or

 (b) drive while in breach of his or her work/rest hours option; or

 (c) drive in breach of another law to avoid driving while impaired by fatigue or while in breach of his or her work/rest hours option.

Penalty: the penalty for a severe risk offence.

Note 1: Section 23 explains what reasonable steps are.

Note 2: Section 27 explains what impaired by fatigue means.

Note 3: Section 35 explains what a work/rest hours option is.

Note 4: Section 106 explains how an offence is specified as a severe risk offence. Section 110 sets out the penalties for severe risk offences.

 (3) The employer must not cause or permit the driver to drive the vehicle unless:

 (a) the employer has complied with subsection (2); and

 (b) the employer, after making reasonable inquiries, is satisfied that the scheduler has complied with section 31.

Penalty: the penalty for a substantial risk offence.

Note: Section 106 explains how an offence is specified as a substantial risk offence. Section 110 sets out the penalties for substantial risk offences.

 (4) The prime contractor and operator each must not cause or permit the driver to drive the vehicle, or enter into a contract or agreement with the driver to that effect, unless:

 (a) the prime contractor or operator has complied with subsection (2); and

 (b) the prime contractor or operator, after making reasonable inquiries, is satisfied that the scheduler has complied with section 31.

Penalty: the penalty for a substantial risk offence.

Note: Section 106 explains how an offence is specified as a substantial risk offence. Section 110 sets out the penalties for substantial risk offences.

 (5) An offence against subsection (2), (3) or (4) is an offence of absolute liability.

31  Duties on schedulers

 (1) This section applies to the scheduler of:

 (a) a regulated heavy vehicle; or

 (b) a driver of a regulated heavy vehicle.

 (2) The scheduler must take all reasonable steps to ensure that a driver’s schedule for driving the vehicle will not cause or permit the driver to:

 (a) drive while impaired by fatigue; or

 (b) drive while in breach of his or her work/rest hours option; or

 (c) drive in breach of another law to avoid driving while impaired by fatigue or while in breach of his or her work/rest hours option.

Penalty: the penalty for a severe risk offence.

Note 1: Section 23 explains what reasonable steps are.

Note 2: Section 27 explains what impaired by fatigue means.

Note 3: Section 36 explains what a work/rest hours option is.

Note 4: Section 106 explains how an offence is specified as a severe risk offence. Section 110 sets out the penalties for severe risk offences.

 (3) The scheduler must not cause or permit the driver to drive the vehicle unless:

 (a) the scheduler has complied with subsection (2); and

 (b) the driver’s schedule for driving the vehicle allows for:

 (i) the driver to take rest breaks in accordance with his or her work/rest hours option; and

Example of ways to take rest breaks

• ensuring that a driver is able to take a short rest break at a suitable location

• ensuring that a driver is able to take a long rest break at a location where facilities that enable adequate rest to be taken are available

 (ii) traffic conditions and other delays that could reasonably be expected.

Examples of traffic conditions and other delays that could reasonably be expected

• the actual average speed able to be travelled lawfully and safely by the driver on the route in question

• known traffic conditions such as road works or traffic congestion on the route in question

• delays caused by loading, unloading or queuing

Penalty: the penalty for a substantial risk offence.

Note: Section 106 explains how an offence is specified as a substantial risk offence. Section 110 sets out the penalties for substantial risk offences.

 (4) An offence against subsection (2) or (3) is an offence of absolute liability.

32  Duties on consignors and consignees

 (1) This section applies to:

 (a) the consignor of goods for transport by a regulated heavy vehicle; and

 (b) the consignee of goods for transport by a regulated heavy vehicle.

 (2) The consignor and consignee each must take all reasonable steps to ensure that the terms of consignment (e.g. delivery times) will not result in, encourage or provide an incentive to the driver to:

 (a) drive while impaired by fatigue; or

 (b) drive while in breach of his or her work/rest hours option; or

 (c) drive in breach of another law to avoid driving while impaired by fatigue or while in breach of his or her work/rest hours option.

Penalty: the penalty for a severe risk offence.

Note 1: Section 23 explains what reasonable steps are.

Note 2: Section 27 explains what impaired by fatigue means.

Note 3: Section 36 explains what a work/rest hours option is.

Note 4: Section 106 explains how an offence is specified as a severe risk offence. Section 110 sets out the penalties for severe risk offences.

 (3) The consignor and consignee each must take all reasonable steps to ensure that the terms of consignment (e.g. delivery times) will not result in, encourage or provide an incentive to the employer of an employed driver, prime contractor of a self‑employed driver or operator of the regulated heavy vehicle to cause or permit the driver to:

 (a) drive while impaired by fatigue; or

 (b) drive while in breach of his or her work/rest hours option; or

 (c) drive in breach of another law to avoid driving while impaired by fatigue or while in breach of his or her work/rest hours option.

Penalty: the penalty for a severe risk offence.

Note 1: Section 23 explains what reasonable steps are.

Note 2: Section 27 explains what impaired by fatigue means.

Note 3: Section 36 explains what a work/rest hours option is.

Note 4: Section 106 explains how an offence is specified as a severe risk offence. Section 110 sets out the penalties for severe risk offences.

 (4) The consignor and consignee each must not cause or permit the driver to drive the vehicle, or enter into a contract or agreement to that effect, unless:

 (a) the consignor or consignee has complied with subsection (2) and (3); and

 (b) in the case of an employed driver—the consignor or consignee, after making reasonable inquiries, is satisfied that:

 (i) the driver’s employer and the operator of the driver’s vehicle have each complied with section 30; and

 (ii) the scheduler has complied with section 31; and

 (c) in the case of a self‑employed driver—the consignor or consignee, after making reasonable inquiries, is satisfied that:

 (i) if the driver has a prime contractor—the prime contractor of the driver has complied with section 30; and

 (ii) the scheduler has complied with section 31.

Penalty: the penalty for a substantial risk offence.

Note 4: Section 106 explains how an offence is specified as a substantial risk offence. Section 110 sets out the penalties for substantial risk offences.

 (5) An offence against subsection (2), (3) or (4) is an offence of absolute liability.

33  Duties on loading managers

 (1) This section applies to loading managers of goods for transport by a regulated heavy vehicle.

 (2) The loading manager must take all reasonable steps to ensure that the arrangements for loading and unloading the vehicles will not cause, or contribute to causing, a driver of a regulated heavy vehicle to:

 (a) drive while impaired by fatigue; or

 (b) drive while in breach of his or her work/rest hours option; or

 (c) drive in breach of another law to avoid driving while impaired by fatigue or while in breach of his or her work/rest hours option.

Penalty: the penalty for a severe risk offence.

Examples of reasonable steps to comply with subsection (2)

• providing for rest to be taken with adequate facilities

• providing for the reporting of travel delays and providing a mechanism for managing late arrivals

• allowing loading and unloading to occur at an agreed time

• having a system of setting and allocating loading and unloading times that a driver can reasonably rely on to comply with the work and rest times specified in this Act

Note 1: Section 23 explains what reasonable steps are.

Note 2: Section 27 explains what impaired by fatigue means.

Note 3: Section 36 explains what a work/rest hours option is.

Note 4: Section 106 explains how an offence is specified as a severe risk offence. Section 110 sets out the penalties for severe risk offences.

 (3) If the loading manager or a person acting under his or her supervision or control:

 (a) nominates a time for loading or unloading a vehicle and that time is exceeded by more than 30 minutes; or

 (b) is unable to nominate a time for loading or unloading the vehicle;

the loading manager must take all reasonable steps to ensure that the driver is able to take rest while waiting for the vehicle to be loaded or unloaded.

Example of reasonable steps that may be taken to ensure a driver is able to take rest

Providing a system of notifying the driver when his or her vehicle can be loaded or unloaded that does not require the driver to be awake or unreasonably alert.

Penalty: the penalty for a substantial risk offence.

Note 1: Section 23 explains what reasonable steps are.

Note 2: Section 27 explains what impaired by fatigue means.

Note 3: Section 36 explains what a work/rest hours option is.

Note 4: Section 106 explains how an offence is specified as a substantial risk offence. Section 110 sets out the penalties for substantial risk offences.

 (2) An offence against subsection (2) or (3) is an offence of absolute liability.

Division 2.4—Certain requests, contracts etc prohibited

34  Certain requests etc prohibited

  A person must not ask, direct or require (directly or indirectly) a driver or a party in the chain of responsibility to do something that the person knows, or reasonably ought to know, would have the effect of causing or permitting the driver to:

 (a) drive while impaired by fatigue; or

 (b) drive while in breach of his or her work/rest hours option; or

 (c) drive in breach of another law to avoid driving while impaired by fatigue or while in breach of his or her work/rest hours option.

Example of a requirement that contravenes this section

A requirement that the driver complete a journey in a time that the person knows or reasonably ought to know cannot be complied with unless the driver commits a speeding offence or does not take all the rest breaks that he or she is required to take.

Penalty: the penalty for a critical risk offence.

Note 1: Section 27 explains what impaired by fatigue means.

Note 2: Section 36 explains what a work/rest hours option is.

Note 3: Section 106 explains how an offence is specified as a critical risk offence. Section 110 sets out the penalties for critical risk offences.

35  Certain contracts etc prohibited

 (1) A person must not enter into a contract or agreement with a driver or with a party in the chain of responsibility that the person knows, or reasonably ought to know, would have the effect of causing or permitting a driver to:

 (a) drive while impaired by fatigue; or

 (b) drive while in breach of his or her work/rest hours option; or

 (c) drive in breach of another law to avoid driving while impaired by fatigue or while in breach of his or her work/rest hours option.

Penalty: the penalty for a critical risk offence.

Note 1: Section 27 explains what impaired by fatigue means.

Note 2: Section 36 explains what a work/rest hours option is.

Note 3: Section 106 explains how an offence is specified as a critical risk offence. Section 110 sets out the penalties for critical risk offences.

 (2) A person must not enter into a contract or agreement with a driver or with a party in the chain of responsibility that the person knows, or reasonably ought to know, would encourage or provide an incentive for a party in the chain of responsibility to cause or permit a driver to:

 (a) drive while impaired by fatigue; or

 (b) drive while in breach of his or her work/rest hours option; or

 (c) drive in breach of another law to avoid driving while impaired by fatigue or while in breach of his or her work/rest hours option.

Penalty: the penalty for a critical risk offence.

Note 1: Section 27 explains what impaired by fatigue means.

Note 2: Section 36 explains what a work/rest hours option is.

Note 3: Section 106 explains how an offence is specified as a critical risk offence. Section 110 sets out the penalties for critical risk offences.

Part 3—Duties relating to work and rest times

Division 3.1—Key concepts for this Part

Subdivision 3.1.1—Work and rest time

36  What is work/rest hours option

  A work/rest hours option sets out the maximum work time and minimum rest time that a driver must have and includes:

 (a) standard hours; and

 (b) BFM hours; and

 (c) AFM hours.

Note: Section 43 explains what standard hours are. Section 48 explains what BFM hours are. Section 52 explains what AFM hours are.

37  What is work time

 (1) A driver’s work time is:

 (a) the time that the driver spends driving a regulated heavy vehicle, whether or not it is on a road; and

 (b) any other time that the driver spends doing tasks that are related to the operation of a regulated heavy vehicle, including for example:

 (i) loading or unloading the vehicle; and

 (ii) inspecting, servicing or repairing the vehicle; and

 (iii) inspecting or attending to the load on the vehicle; and

 (iv) attending to the passengers of a bus; and

 (v) cleaning or refuelling the vehicle; and

 (vi) performing marketing tasks in relation to the operation of the vehicle; and

 (vii) helping with, or supervising, an activity mentioned in subparagraphs (i) to (vi); and

 (viii) recording information, or completing a document, in accordance with this Act or otherwise, in relation to the operation of the vehicle.

 (2) For subparagraph (1)(b)(vi), marketing tasks includes:

 (a) arranging for the transport of passengers or goods; and

 (b) canvassing for orders for the transport of passengers or goods.

38  What is rest time

  Rest time of a driver is time that is not work time of the driver.

39  What is a work/rest change

  A work/rest change for a driver is:

 (a) a change from work time to rest time; or

 (b) a change from rest time to work time; or

 (c) a change from being a solo driver to being a two‑up driver; or

 (d) a change from being a two‑up driver to being a solo driver.

Subdivision 3.1.2—Counting time

40  Counting time, including work and rest time

 (1) A period of work time of less than 15 minutes counts as 15 minutes work time.

Examples

• A period of working for 14 minutes counts as 15 minutes work time.

• A period of working for 17 minutes counts as 30 minutes work time.

• A period of working for 53 minutes counts as 1 hour work time.

 (2) A period of rest time is counted in blocks of time of no less than 15 minutes.

Examples

• A period of not working for only 14 minutes does not count as rest time (because 14 minutes is less than 15 minutes).

• A period of not working for 17 minutes counts as 15 minutes rest time (because 17 minutes is more than 15 minutes, but is less than 2 lots of 15 minutes i.e. 30 minutes).

• A period of not working for 53 minutes counts as 45 minutes rest time (because 53 minutes is more than 3 lots of 15 minutes i.e. 45 minutes, but is less than 4 lots of 15 minutes i.e. 60 minutes).

 (3) When counting time in a period, the time must not be counted from within rest time, but instead must be counted forward from the end of a major rest break.

Example: A driver completes a 7 hour continuous rest break at 7 am. If the driver is subsequently intercepted by an authorised officer or police officer at 5 pm while the driver is on work time, the officer must calculate the driver’s work and rest times for that day counting forward from 7 am, which was the end of the driver’s last major rest break.

 (4) If a driver undertakes a journey and is in a different time zone from the time zone of his or her base at the time when a period of time is relevant for the purposes of this Act, the period must be counted by reference to the time zone of the base.

Example: If it is necessary to determine the night hours of a driver with a base in Western Australia while the driver is in New South Wales on a journey, those night hours are the period between 12 midnight and 6 am in the Western Australian time zone in which the driver’s base is situated (even though those hours equate, for instance, to 3 am to 9 am Eastern Standard Summer Savings Time).

41  Counting time within the participating zone

  In applying this Part to a driver, any time that is spent by the driver in another jurisdiction within the participating zone is to be treated in the same way as it would have been treated if the time had been spent in this jurisdiction.

Note: Section 22(4) explains what the participating zone is.

42  Counting time from outside the participating zone

 (1) This section applies to a driver if the driver drives a regulated heavy vehicle into this jurisdiction from another jurisdiction within the non‑participating zone.

Note: Section 22(5) explains what the non‑participating zone is.

 (2) If, within the last 7 days, the driver has spent any work time inside the participating zone, any time spent by the driver in the other jurisdiction within the non‑participating zone is to be treated in the same way as it would have been treated if the time had been spent in this jurisdiction.

 (3) If, within the last 7 days, the driver spent any work time outside the 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.

Division 3.2—Standard hours

43  What this Division is about

 (1) This Division is about the work and rest times that apply to the driver of a regulated heavy vehicle, and that a party in the chain of responsibility must ensure a driver complies with, if the driver is not working under a BFM or AFM accreditation (the standard hours).

Note: Divisions 3.3 and 3.4 explain the hours for drivers under a BFM and AFM accreditation.

 (2) The solo driver of a bus has the option to drive under either (but not both):

 (a) the standard hours set out in section 44; or

 (b) the standard hours set out in section 45.

44  Standard hours—solo drivers

 (1) The table at the end of this section sets out the standard hours for the solo driver of a regulated heavy vehicle (including a bus).

Note: Sections 49 and 52 explain the hours for solo drivers under a BFM and AFM accreditation.

 (2) In any period mentioned in column 1, the solo driver:

 (a) must not work for more than the work time mentioned in column 2; and

 (b) must have the rest of that period off work, with at least the rest time mentioned in column 3.

Penalty: the penalty for the category of offence mentioned in column 4.

Note: Section 106 explains how an offence is specified as a minor risk offence, a substantial risk offence, a severe risk offence or a critical risk offence. Section 110 sets out the penalties for each category of offence.

 (3) A party in the chain of responsibility for the regulated heavy vehicle must ensure the solo driver does not contravene subsection (2).

Penalty: the penalty for the category of offence mentioned in column 4.

Note: Section 106 explains how an offence is specified as a minor risk offence, a substantial risk offence, a severe risk offence or a critical risk offence. Section 110 sets out the penalties for each category of offence.

 (4) An offence against subsection (2) or (3) is an offence of absolute liability.

 (5) However, a party charged with an offence against subsection (2) or (3) has the benefit of the reasonable steps defence.

Note: Section 24 explains the reasonable steps defence.

 (6) In this section, a reference to a column by number is a reference to the column of that number in the following table:

Standard hours—Solo drivers of a regulated heavy vehicle

Example

If a driver starts work at midday on Monday, after a 2‑day break, the minimum rest times that the driver might have would be:

• 15 continuous minutes rest time before 5:30 pm

• another 15 continuous minutes rest time before 8:00 pm (i.e. a total of 30 minutes rest time since midday)

• another continuous 30 minutes rest time before 11:00 pm (i.e. a total of 60 minutes rest time since midday)

• another continuous 7 hours rest time before midday on Tuesday.

The driver could do the same hours through to Saturday, but would have to take a break from midday Sunday until midday Monday (i.e. 24 hours stationary continuous rest). Additionally, the driver would have to take at least one other of his or her 7 hour rests during the period 10:00 pm to 8:00 am.

The driver could continue the same pattern for a second week, through until the second Saturday, if the driver has had a night’s rest time (i.e. 7 continuous hours rest time between 10:00 pm and 08:00 am) on 4 nights, including 2 consecutive nights, during the fortnight ending on midday on the second Sunday.

(This example assumes that the driver has remained in the same time zone during the entire period described.)

45  Standard hours—solo drivers of buses

 (1) The table at the end of this section sets out the standard hours for the solo driver of a bus.

Note: Sections 49 and 52 explain the hours for solo drivers under a BFM and AFM accreditation.

 (2) In any period mentioned in column 1, the solo driver of a bus:

 (a) must not work for more than the work time mentioned in column 2; and

 (b) must have the rest of that period off work, with at least the rest time mentioned in column 3.

Penalty: the penalty for the category of offence mentioned in column 4.

Note: Section 106 explains how an offence is specified as a minor risk offence, a substantial risk offence, a severe risk offence or a critical risk offence. Section 110 sets out the penalties for each category of offence.

 (3) A party in the chain of responsibility for the bus must ensure the solo driver does not contravene subsection (2).

Penalty: the penalty for the category of offence mentioned in column 4.

Note: Section 106 explains how an offence is specified as a minor risk offence, a substantial risk offence, a severe risk offence or a critical risk offence. Section 110 sets out the penalties for each category of offence.

 (4) An offence against subsection (2) or (3) is an offence of absolute liability.

 (5) However, a party charged with an offence against subsection (2) or (3) has the benefit of the reasonable steps defence.

Note: Section 24 explains the reasonable steps defence.

 (6) In this section, a reference to a column by number is a reference to the column of that number in the following table:

Standard hours—Solo drivers of buses

46  Standard hours—two‑up drivers

 (1) The table at the end of this section 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.

Note: Sections 50 and 52 explain the hours for two‑up drivers under a BFM and AFM accreditation.

 (2) In any period mentioned in column 1, the two‑up driver:

 (a) must not work for more than the work time mentioned in column 2; and

 (b) must have the rest of that period off work, with at least the rest time mentioned in column 3.

Penalty: the penalty for the category of offence mentioned in column 4.

Note: Section 106 explains how an offence is specified as a minor risk offence, a substantial risk offence, a severe risk offence or a critical risk offence. Section 110 sets out the penalties for each category of offence.

 (3) A party in the chain of responsibility for the regulated heavy vehicle must ensure the two‑up driver does not contravene subsection (2).

Penalty: the penalty for the category of offence mentioned in column 4.

Note: Section 106 explains how an offence is specified as a minor risk offence, a substantial risk offence, a severe risk offence or a critical risk offence. Section 110 sets out the penalties for each category of offence.

 (4) An offence against subsection (2) or (3) is an offence of absolute liability.

 (5) However, a party charged with an offence against subsection (2) or (3) has the benefit of the reasonable steps defence.

Note: Section 24 explains the reasonable steps defence.

 (6) In this section, a reference to a column by number is a reference to the column of that number in the following table:

Standard hours—Two‑up drivers of a regulated heavy vehicle

47  Defence relating to short rest breaks

 (1) If an offence under standard hours could have been avoided if the driver had taken a short rest break, it is a defence for the driver to prove that:

 (a) at the time when the driver was required to take the short rest break, there was no suitable rest place; and

 (b) the driver took the short rest break at the next suitable rest place available after this time on the forward route of the driver’s journey up to a maximum of 45 minutes.

Example: A driver fails to take a short rest break after 5¼ hours of work because there was no suitable rest place when the driver was scheduled to take his or her short rest break. Instead, the driver takes a short rest break after 5½ hours work at another place down the road.

 (2) A short rest break means a rest of less than 1 hour.

 (3) A suitable rest place means:

 (a) a rest area designated for and able to be used by a regulated heavy vehicle; or

Example: A designated rest area would not be able to be used if it was full or did not have sufficient capacity to accommodate the class of vehicle the driver was driving.

 (b) a place at which a regulated heavy vehicle may be safely and lawfully parked; or

 (c) a place declared by the regulations to be a suitable rest place;

but does not include a place declared by the regulations not to be a suitable rest place.

Division 3.3—BFM hours

48  What this Division is about

  This Division sets out the work and rest times that apply to the driver of a regulated heavy vehicle, and that a party in the chain of responsibility must ensure a driver complies with, if the driver is working under, and complying with, a BFM accreditation or a prescribed bus accreditation (the BFM hours).

Note: Divisions 3.2 and 3.4 explain the hours for drivers under standard hours and AFM accreditation.

49  BFM hours—solo drivers

 (1) The table at the end of this section sets out the BFM hours for a solo driver of a regulated heavy vehicle.

Note: Sections 44, 45 and 52 explain the hours for solo drivers under standard hours and AFM accreditation.

 (2) In any period mentioned in column 1, the solo driver:

 (a) must not work for more than the work time mentioned in column 2; and

 (b) must have the rest of that period off work, with at least the rest time mentioned in column 3.

Penalty: the penalty for the category of offence mentioned in column 4.

Note: Section 106 explains how an offence is specified as a minor risk offence, a substantial risk offence, a severe risk offence or a critical risk offence. Section 110 sets out the penalties for each category of offence.

 (3) A party in the chain of responsibility for the regulated heavy vehicle must ensure the solo driver does not contravene subsection (2).

Penalty: the penalty for the category of offence mentioned in column 4.

Note: Section 106 explains how an offence is specified as a minor risk offence, a substantial risk offence, a severe risk offence or a critical risk offence. Section 110 sets out the penalties for each category of offence.

 (4) An offence against subsection (2) or (3) is an offence of absolute liability.

 (5) However, a party charged with an offence against subsection (2) or (3) has the benefit of the reasonable steps defence.

Note: Section 24 explains the reasonable steps defence.

 (6) In this section, a reference to a column by number is a reference to the column of that number in the following table:

BFM hours—Solo drivers of a regulated heavy vehicle

50  Defence for solo drivers relating to split rest breaks

  If an offence under BFM hours could have been avoided if the driver had taken a 7 hours continuous rest break, it is a defence for the driver to prove that the driver took:

 (a) a 6 hour continuous rest break and a 2 hour continuous rest break within the same 24 hour period (a split rest break); and

 (b) the driver had not taken a split rest break in the previous 24 hour period.

Example: A driver stops work to take a 7 hour continuous rest break after 14 hours of work, but cannot sleep, so the driver takes only 2 hours continuous rest and then drives on for a further 2 hours and takes a further 6 hours continuous rest at another place down the road.

51  BFM hours—two‑up drivers

 (1) The table at the end of this section sets out the BFM hours for a two‑up driver of a regulated heavy vehicle.

Note: Sections 46 and 52 explain the hours for two‑up drivers under standard hours and AFM accreditation.

 (2) In any period mentioned in column 1, the two‑up driver:

 (a) must not work for more than the work time mentioned in column 2; and

 (b) must have the rest of that period off work, with at least the rest time mentioned in column 3.

Penalty: the penalty for the category of offence mentioned in column 4.

Note: Section 106 explains how an offence is specified as a minor risk offence, a substantial risk offence, a severe risk offence or a critical risk offence. Section 110 sets out the penalties for each category of offence.

 (3) A party in the chain of responsibility for the regulated heavy vehicle must ensure the two‑up driver does not contravene subsection (2).

Penalty: the penalty for the category of offence mentioned in column 4.

Note: Section 106 explains how an offence is specified as a minor risk offence, a substantial risk offence, a severe risk offence or a critical risk offence. Section 110 sets out the penalties for each category of offence.

 (4) An offence against subsection (2) or (3) is an offence of absolute liability.

 (5) However, a party charged with an offence against subsection (3) has the benefit of the reasonable steps defence.

Note: Section 24 explains the reasonable steps defence.

 (6) In this section, a reference to a column by number is a reference to the column of that number in the following table:

BFM hours—Two‑up drivers of a regulated heavy vehicle

Division 3.4—AFM hours

52  AFM hours

 (1) The accreditation certificate issued for an AFM accreditation sets out the work and rest times that apply to the driver of a regulated heavy vehicle, and that a party in the chain of responsibility must ensure a driver complies with, if the driver is working under, and complying with, the accreditation (the AFM hours).

Note 1: Divisions 3.2 and 3.3 explain the hours for drivers under standard hours and BFM accreditation.

Note 2: Section 84(6) explains about the accreditation certificate issued for an AFM accreditation.

 (2) In any period specified in the AFM accreditation, the driver:

 (a) must not work for more than the maximum work time specified in the AFM hours; and

 (b) must have at least the minimum rest time specified in the AFM hours.

Penalty: the penalty for the category of offence mentioned in column 3.

Note: Section 106 explains how an offence is specified as a minor risk offence, a substantial risk offence, a severe risk offence or a critical risk offence. Section 110 sets out the penalties for each category of offence.

 (3) A party in the chain of responsibility for the regulated heavy vehicle must ensure the driver does not contravene subsection (2).

Penalty: the penalty for the category of offence mentioned in column 3.

Note: Section 106 explains how an offence is specified as a minor risk offence, a substantial risk offence, a severe risk offence or a critical risk offence. Section 110 sets out the penalties for each category of offence.

 (4) An offence against subsection (2) or (3) is an offence of absolute liability.

 (5) However, a party charged with an offence against subsection (3) has the benefit of the reasonable steps defence.

Note: Section 24 explains the reasonable steps defence.

 (6) In this section, a reference to a column by number is a reference to the column of that number in the following table:

AFM hours—Penalties

Division 3.5—Changing work/rest hours option

53  Changing work/rest hours option

 (1) A driver of a regulated heavy vehicle may drive under only 1 work/rest hours option at any 1 time.

Note: Section 36 explains what a work/rest hours option is.

 (2) However, a driver may change from 1 work/rest hours option to a different work/rest hours option.

 (3) A driver must not drive a regulated heavy vehicle after changing from 1 work/rest hours option to a different work/rest hours option unless:

 (a) if the change is from standard hours or BFM hours—either:

 (i) the driver is in compliance with all the work and rest time requirements of the work/rest hours option to which he or she has changed; or

 (ii) the driver has had a reset rest break; and

 (b) if the change is from AFM hours—the driver has had a reset rest break; and

Examples

If the driver is changing from BFM hours to standard hours, the driver may need to take a longer rest break before starting driving under the different work/rest hours option, or may need to take earlier rest breaks before working under the different work/rest hours option, or may choose to have a reset rest break instead.

If the driver is changing from AFM hours, the driver must take a reset rest break before driving a regulated heavy vehicle under the different work/rest hours option.

 (c) the driver complies with all other requirements of the work/rest hours option to which he or she has changed.

Example: If the driver is changing to BFM or AFM hours, the driver should be inducted into the operator’s BFM or AFM fatigue management system.

Penalty: the penalty for a substantial risk offence.

 (4) If a driver has had a reset rest break between changing from 1 work/rest hours option to a different work/rest hours option, the period to which the new work/rest hours option applies must be counted forward from the end of the reset rest break.

 (5) The employer or prime contractor of a driver who changes from 1 work/rest hours option to a different work/rest hours option, the operator of any regulated heavy vehicle driven by the driver, and the driver’s scheduler, each must:

 (a) ensure that the driver does not drive a regulated heavy vehicle after making the change unless the driver has complied with subsections (3) and (4); and

 (b) take whatever action is necessary to ensure that the driver can comply with his or her obligations in relation to the change.

Penalty: the penalty for a severe risk offence.

Note: Section 106 explains how an offence is specified as \a severe risk offence. Section 110 sets out the penalties for each category of offence.

 (6) An offence against subsection (3), (4) or (5) is an offence of absolute liability.

 (7) However, a party charged with the offence has the benefit of the reasonable steps defence.

Note: Section 24 explains the reasonable steps defence.

 (8) A reset rest break means a rest break of at least 48 hours continuous rest.

Part 4—Duties relating to record keeping

Division 4.1—Key concepts for this Part

54  What is 100 km work and 100+ km work

 (1) The driver of a regulated heavy vehicle is engaged in 100 km work if the driver is driving in an area that has a radius of 100 km or less from the driver’s base.

 (2) The driver of a regulated heavy vehicle is engaged in 100+ km work if the driver is driving in an area that has a radius of more than 100 km from the driver’s base.

Drafting note: Some jurisdictions may change 100 km to another number of kilometres.

55  What is a driver’s base and record location

 (1) The base of a driver of a regulated heavy vehicle is:

 (a) the place from which the driver normally works; or

 (b) if the driver has not recorded the place specified in paragraph (a) in his or her work diary, the garage address of the vehicle.

 (2) The garage address of a vehicle is:

 (a) if the vehicle is normally kept at a depot when not in use—the principal depot at which it is kept; or

 (b) in any other case—the home address of the registered operator.

 (3) If a driver is a self‑employed driver and an employed driver at different times, the driver may have 1 base as a self‑employed driver and another base as an employed driver.

 (4) If a driver has 2 or more employers, the driver may have a different base in relation to each employer.

 (5) The record location of a driver is:

 (a) a place which the record keeper has instructed the driver is the record location; or

 (b) if the record keeper has not instructed the driver as specified in paragraph (a), the driver’s base.

Note: Record keeper is defined in section 62(2).

Division 4.2—Work diary requirements

56  Driver must carry work diary

 (1) This section applies if a driver:

 (a) is engaged in 100+ km work; or

 (b) was engaged in 100+ km work in the last 28 days; or

 (c) is driving under BFM or AFM hours; or

 (d) was driving under BFM or AFM hours in the last 28 days.

 (2) While driving a regulated heavy vehicle, the driver must keep in the vehicle a work diary that contains information for the last 28 days.

Court‑imposed penalty: $6 000.

Note 1: See section 59 for a defence against this subsection if the driver’s work diary is destroyed, lost, stolen or stops being operational.

Note 2: An authorised officer or police officer may require the driver to produce his or her work diary for inspection—see section 44 of the C & E Act.

 (3) A work diary is:

 (a) if the driver has used only a written work diary in the last 28 days—the written work diary; or

 (b) if the driver was required to keep a supplementary record under section 59 in the last 28 days—the supplementary record and the written work diary; or

 (c) if the driver has used only an electronic work diary in the last 28 days:

 (i) the electronic work diary that the driver is currently using; and

 (ii) printouts of the information in any other electronic work diary that the driver has used in the last 28 days that cover any periods during those 28 days that are not recorded in the electronic work diary that the driver is currently using; or

 (d) if the driver has used a combination of a written work diary and an electronic work diary in the last 28 days:

 (i) the written work diary; and

 (ii) if the driver is currently using an electronic work diary—the electronic work diary; and

 (iii) printouts of the information in any electronic work diary that the driver has used in the last 28 days that cover any periods during those 28 days that are not recorded in an electronic work diary that the driver is currently using.

 (4) A written work diary is a written work diary issued to the driver under section 73 or under a corresponding fatigue law.

 (5) An electronic work diary is an intelligent transport system, approved by the Authority under section 74, that:

 (a) is fitted to a regulated heavy vehicle to monitor and record the work and rest times of a driver; and

 (b) whenever an authorised officer or police officer requests the electronic work diary to be produced for inspection, is able to reproduce the information it contains in a form:

 (i) that is readily accessible by the officer; and

 (ii) that is reasonably capable of being understood by the officer; and

 (iii) that can be used as evidence; and

 (c) is operating in accordance with the manufacturer’s specifications and any conditions imposed by the Authority in its approval.

Note 1: Intelligent transport system is defined in the C & E Act.

Note 2: An electronic work diary may include or form part of an approved intelligent transport system under the IAP Act.

 (6) Subsection (2) applies irrespective of the number of days in the last 28 days on which the driver spent work time in relation to a regulated heavy vehicle.

57  Information that driver must record in work diary

 (1) This section lists the information that a driver must record in his or her work diary on each day on which the driver:

 (a) engages in 100+ km work; or

 (b) is working under BFM or AFM hours.

Note: Section 58 explains how the information must be recorded.

 (2) The driver must continue to record the information until his or her next major rest break.

 (3) Immediately after starting work on each of those days, the driver must record:

 (a) the day of the week and date; and

 (b) his or her name; and

 (c) his or her current driver licence number, and the jurisdiction where the licence was issued; and

 (d) whether he or she is working under standard hours (including whether the driver is working under standard hours for solo drivers of a bus), BFM hours or AFM hours; and

 (e) if he or she is working under BFM or AFM hours—his or her operator’s BFM or AFM accreditation number; and

 (f) details of his or her base and the time zone of the base, unless the driver has previously recorded those details and they are still current; and

 (g) details of the driver’s record location, unless the driver has previously recorded those details and they are still current.

Court‑imposed penalty: $2 000.

Infringement notice penalty: $600.

 (4) Immediately before or after each work/rest change on each of those days, the driver must record:

 (a) the nature of the work/rest change; and

 (b) the work time or rest time spent anywhere by the driver since the last work/rest change; and

 (c) the time and place of the work/rest change; and

Note: An abbreviation may be used by a driver to refer to a place provided that it is capable of being understood by a reasonable person and is not designed to confuse or be misleading.

 (d) the odometer reading at that time; and

 (e) the registration number shown on the numberplate of each heavy motor vehicle that the driver drives; and

 (f) if the driver is or becomes a two‑up driver—the following information about the other driver in the two‑up driving arrangement:

 (i) the other driver’s name; and

 (ii) the other driver’s driver licence number; and

 (iii) the number of the other driver’s work diary; and

 (iv) the participating jurisdiction that issued the other driver’s work diary.

Court‑imposed penalty: $2 000.

Infringement notice penalty: $600.

 (5) Immediately before finishing work on each of those days, the driver must record the total of the work time and the total of the rest time that he or she has had that day.

Court‑imposed penalty: $2 000.

Infringement notice penalty: $600.

 (6) An offence against this section is an offence of strict liability.

Note: A spelling mistake made by a driver in completing a work diary may be considered an honest and reasonable mistake of fact (and therefore provide a strict liability defence) if it is capable of being understood by a reasonable person and is not deliberate or designed to confuse or be misleading.

 (7) However, if this section requires a driver to record information before beginning to engage in 100+ km work on a day, it is a defence for the driver to prove that, at the time of the offence:

 (a) he or she was unaware that he or she would be engaging in 100+ km work on the day; and

 (b) he or she recorded the information in his or her work diary as soon as practicable after becoming aware that he or she would be engaging in 100+ km work on the day.

58  How driver must record information in work diary

 (1) A driver must record information in a written work diary in this way:

 (a) the information for each day must be written on a separate daily sheet in a work diary that has not been cancelled by the Authority; and

 (b) if the driver has a work/rest change—the information after the work/rest change must be written on a separate daily sheet in a work diary that has not been cancelled by the Authority; and

 (c) information must be written on a daily sheet as required by the instructions in the work diary for recording information on daily sheets; and

 (d) the daily sheets in the work diary must be used in turn from the front of the work diary; and

 (e) each daily sheet must:

 (i) be signed and dated by the driver; and

 (ii) if the driver is driving under a two‑up arrangement—signed by the other two‑up driver; and

 (f) information must be written on a daily sheet with enough pressure to ensure that a readable record of the information appears on the duplicate daily sheets; and

 (g) other information must be written in the work diary as required by the instructions in the work diary for the recording of the information.

Court‑imposed penalty: $2 000.

Infringement notice penalty: $600.

 (2) A driver must record information in an electronic work diary in the way required by:

 (a) the Authority; or

 (b) if the Authority does not make a requirement—the manufacturer’s instructions for recording information in the work diary.

Court‑imposed penalty: $2 000.

Infringement notice penalty: $600.

 (3) A driver must record time in a work diary according to the time zone in the place where the driver’s base is, rather than the time zone in the place where the driver is.

Court‑imposed penalty: $2 000.

Infringement notice penalty: $600.

 (4) An offence against this section is an offence of strict liability.

59  Destroyed, lost, stolen or malfunctioning work diaries

 (1) It is a defence for an offence against section 56(2) for the driver to prove that:

 (a) at the time of the offence, the driver’s work diary had been filled up, destroyed, lost or stolen or, in the case of an electronic work diary, was malfunctioning; and

 (b) within 2 business days after the offence, the driver had complied with subsection (3) or (5); and

 (c) until the driver was issued with a replacement work diary or the electronic work diary was in working order, the driver was recording the information required by section 57 in a supplementary record; and

 (d) while driving a regulated heavy vehicle, the driver kept in the vehicle the supplementary record that contained information for the last 28 days.

 (2) A supplementary record is a record that:

 (a) is not made in a 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 work diary.

 (3) As soon as practicable (but within 2 business days) after the driver becomes aware that the written work diary has been destroyed, lost or stolen, the driver must give the Authority written notice of that happening.

Court‑imposed penalty: $4 000.

Infringement notice penalty: $800.

 (4) If a lost or stolen written work diary (the old work diary) is found by, or returned to, the driver after a replacement work diary has been issued to the driver, the driver must:

 (a) immediately cancel any unused daily sheets in the old work diary by writing ‘cancelled’ in large letters across each unused sheet; and

 (b) give the old work diary to the Authority as soon as practicable after the old work diary is found or returned.

Court‑imposed penalty: $4 000.

Infringement notice penalty: $800.

 (5) If the driver of a regulated heavy vehicle becomes aware or reasonably suspects that an electronic work diary fitted to the vehicle is malfunctioning, the driver must inform his or her record keeper of that as soon as practicable (but within 2 business days).

Note: Section 62(2) explains who the record keeper is.

Court‑imposed penalty: $4 000.

Infringement notice penalty: $800.

 (6) Also, in the case of an electronic work diary that includes or forms part of an intelligent transport system approved under the IAP Act, if a person on whom an obligation to report a malfunction of or tampering with a system under that Act becomes aware or reasonably suspects that the electronic work diary is malfunctioning, the person must inform the record keeper of that as soon as practicable (but within 2 business days).

Court‑imposed penalty: $4 000.

Infringement notice penalty: $800.

Note: Persons who have obligations to report a malfunction or tampering under the IAP Act include operators of IAP vehicles, drivers of IAP vehicles, IAP service providers, TCA and IAP auditors.

 (7) As soon as is practicable after being informed under subsections (5) or (6), the record keeper must ensure that the electronic work diary is examined and brought into working order.

Court‑imposed penalty: $4 000.

Infringement notice penalty: $800.

 (8) An offence against subsections (3), (4), (5), (6) or (7) is an offence of absolute liability.

 (9) However, a person charged with the offence has the benefit of the reasonable steps defence.

Note: Section 24 explains the reasonable steps defence.

60  Malfunctioning odometers

 (1) It is a defence for an offence against subsection 57(4)(d) for the driver to prove that:

 (a) at the time of the offence, the odometer was malfunctioning; and

 (b) within 2 business days after the offence, the driver had complied with subsection (3).

 (2) The owner of a regulated heavy vehicle must ensure that an odometer that is fitted to the vehicle is maintained to the standard prescribed by the regulations.

Court‑imposed penalty: $4 000.

Infringement notice penalty: $800.

 (3) If the driver of a regulated heavy vehicle becomes aware or reasonably suspects that an odometer fitted to the vehicle is malfunctioning, the driver must inform the following persons of that as soon as practicable (but within 2 business days):

 (a) the owner of the vehicle; and

 (b) if the driver is an employed driver—the driver’s employer; and

 (d) the operator of the vehicle.

Court‑imposed penalty: $4 000.

Infringement notice penalty: $800.

 (4) As soon as is practicable after being informed under subsection (3), the owner of the regulated heavy vehicle must ensure that the odometer is examined and brought into working order.

Court‑imposed penalty: $4 000.

Infringement notice penalty: $800.

 (5) The driver’s employer and the operator of the vehicle must ensure that the owner complies with subsection (4).

Court‑imposed penalty: $4 000.

Infringement notice penalty: $800.

 (6) An offence against subsections (2), (3), (4) or (5) is an offence of absolute liability.

 (7) However, a person charged with the offence has the benefit of the reasonable steps defence.

Note: Section 24 explains the reasonable steps defence.

61  Duty on employers, prime contractors, operators and schedulers to ensure driver compliance

 (1) These persons must ensure that a driver complies with the requirements of this Division:

 (a) the employer of an employed driver; and