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TASMANIA
__________
HEAVY VEHICLE ROAD TRANSPORT
AMENDMENT BILL 2009
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 6 amended (Interpretation)
5. Section 93 amended (False or misleading transport
documentation: liability of consignor, packer, loader, receiver
and others)
6. Parts 4A and 4B inserted
PART 4A Fatigue Management
Division 1 Preliminary
97A. Purpose of Part
97B. Application of Part
97C. Interpretation of Part 4A
Division 2 Who this Part applies to
97D. Who is a driver
97E. Who are parties in chain of responsibility
Division 3 Reasonable steps
97F. What are reasonable steps
97G. Deciding whether persons ought reasonably to have
known
Division 4 Causation
97H. Intention irrelevant in determining causation
97I. Cause includes "contributing to causing" and
"encourage"
[Bill 94]-VII
97J. Objective reasonableness test to be used in
determining causation
Division 5 What is fatigue
97K. What is fatigue
97L. What is impaired by fatigue
Division 6 Duty to avoid and prevent driver fatigue
97M. Driver's duty to avoid driver fatigue
97N. Duty of party in chain of responsibility to prevent
driver fatigue
Division 7 Additional duties of certain parties in the chain
of responsibility
97O. Duty of employer, prime contractor and operator
97P. Duty of scheduler
97Q. Duty of consignor and consignee
97R. Duty of loading manager
Division 8 Certain requests, contracts &c. prohibited
97S. Certain requests &c. prohibited
97T. Certain contracts &c. prohibited
Division 9 Compliance and enforcement
97U. Extra-territorial offences
97V. Fatigue and work/rest hours breaches
97W. Duty of officers to annotate driver's work diary
Division 10 Regulations
97X. Regulations relating to fatigue management
PART 4B Speeding Compliance
Division 1 Preliminary
97Y. Purpose of Part
97Z. Interpretation of Part 4B
Division 2 Causation
97ZA. Intention irrelevant in determining causation
97ZB. Cause includes "contribute to causing" and
"encourage"
97ZC. Objective reasonableness test to be used in
determining causation
Division 3 Specific duties and offences
97ZD. Duty concerning business practices
97ZE. Duty to ensure offences are not committed
97ZF. Duty of scheduler
97ZG. Duty of consignor and consignee
97ZH. Duty of loading manager
Division 4 Certain requests, contracts &c., prohibited
97ZI. Who are parties in chain of responsibility
97ZJ. Certain requests prohibited
97ZK. Certain contracts and agreements prohibited
2
Division 5 Compliance and enforcement
97ZL. Reasonable steps
97ZM. Evidential matters
7. Section 163 amended (Regulations)
8. Section 163A inserted
163A. Regulations relating to intelligent transport systems
9. Schedule 2 inserted
Schedule 2 Fatigue Management Risk Categories
10. Repeal of Act
3
4
HEAVY VEHICLE ROAD TRANSPORT
AMENDMENT BILL 2009
(Brought in by the Minister for Infrastructure, the Honourable
Graeme Lindsay Sturges)
A BILL FOR
An Act to amend the Heavy Vehicle Road Transport Act
2009
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Heavy Vehicle
Road Transport Amendment Act 2009.
2. Commencement
The provisions of this Act commence on a day
or days to be proclaimed.
3. Principal Act
In this Act, the Heavy Vehicle Road Transport
Act 2009* is referred to as the Principal Act.
*No. 19 of 2009
[Bill 94] 5
Heavy Vehicle Road Transport Amendment Act 2009
Act No. of
s. 4
4. Section 6 amended (Interpretation)
Section 6(1) of the Principal Act is amended as
follows:
(a) by inserting the following definition after
the definition of "run":
"scheduler" means
(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;
(b) by inserting the following definition after
the definition of "unit load":
"unloader", in relation to goods,
means
(a) a person who unloads
from a vehicle or
combination goods that
have been transported by
road; or
(b) a person who unloads
from a vehicle or
combination a freight
container (whether or not
containing goods) that has
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Heavy Vehicle Road Transport Amendment Act 2009
Act No. of
s. 4
been transported by road;
or
(c) without limiting
paragraph (a) or (b), a
person who unloads from
a freight container that is
on a vehicle or
combination goods that
have been transported 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);
(c) by omitting ", rest time and driving time
required to be kept by a driver in
accordance with regulations under the
Vehicle and Traffic Act 1999." from the
definition of "work record" and
substituting "and rest time required to be
kept by a driver under this Act or the
regulations.".
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5. Section 93 amended (False or misleading transport
documentation: liability of consignor, packer,
loader, receiver and others)
Paragraph (a)(ii) of the penalty under section
93(5) of the Principal Act is amended by
omitting "1 000" and substituting "100".
6. Parts 4A and 4B inserted
After section 97 of the Principal Act, the
following Parts are inserted:
PART 4A FATIGUE MANAGEMENT
Division 1 Preliminary
97A. Purpose of Part
(1) The principal purpose of this Part is to
provide for the safe management of the
fatigue of drivers of regulated heavy
vehicles while they are driving on a
public street.
(2) In outline, this Part provides
(a) for general duties, to avoid or
prevent drivers from driving
regulated heavy vehicles on a
public street 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
comply with this Part; and
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(b) that parties in the chain of
responsibility are liable for
ensuring that a driver complies
with his or her relevant work/rest
hours option.
97B. Application of Part
This Part 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 paragraph (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
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- 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 of 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.
97C. Interpretation of Part 4A
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" is an acronym for Advanced
Fatigue Management;
"AFM accreditation" means an AFM
accreditation that is granted under
the regulations, or a
corresponding fatigue law, and is
in force;
"AFM hours" means the work times
and rest times set out in an AFM
accreditation for a driver working
under that accreditation;
"articulated" for a vehicle, means
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(a) the vehicle consists of a
motor vehicle and a
trailer; and
(b) the trailer is pivoted to the
motor vehicle; and
(c) part of the trailer (not
being a pole, drawbar or
similar device) is
superimposed on the
motor vehicle;
"Australian Transport Council"
includes
(a) the Australian Transport
Council comprising
Commonwealth, State and
Territory Ministers
responsible for transport
and road issues; and
(b) in relation to a particular
matter, includes a person
who, or body that, has
been authorised by the
organisation referred to in
paragraph (a) to act as its
delegate in relation to that
matter;
"BFM" is an acronym for Basic
Fatigue Management;
"BFM accreditation" means a BFM
accreditation, that is granted
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under the regulations, or a
corresponding fatigue law, and is
in force;
"BFM hours" means the prescribed
work and rest times for a driver
working under BFM
accreditation;
"body of fatigue knowledge" see
section 97K(5);
"bus" means a motor vehicle built
mainly to carry people that seats
more than 12 adults (including
the driver);
"business day" means a day that is
not a Saturday or Sunday or a
statutory holiday as defined in the
Statutory Holidays Act 2000;
"cause of fatigue" see
section 97K(3);
"corresponding fatigue law", for this
Part or a provision of this Part,
means
(a) a law in force in another
jurisdiction corresponding
to this Part or a provision
of this Part; or
(b) a law of another
jurisdiction that is
declared under the
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regulations to be a
corresponding fatigue
law, whether or not the
law corresponds, or
substantially corresponds,
to this Part;
"critical risk offence" means an
offence that is specified as a
critical risk offence in Schedule 2
or the regulations;
"fatigue" see section 97K;
"Fatigue Authorities Panel" means
the body of that name established
in accordance with 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;
"heavy truck" means
(a) a motor vehicle (except a
bus or tram) with a GVM
of more than 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 of more
than 12 tonnes;
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"impaired by fatigue" see
section 97L;
"loading manager" means
(a) a person who manages, or
who is responsible for the
operation of, a premises at
which usually on a
business day at least 5
regulated heavy
vehicles
(i) are loaded with
goods for
transport; or
(ii) have goods that
the vehicles have
transported
unloaded; or
(b) a person who directly or
indirectly supervises,
manages or controls the
loading or unloading of
regulated heavy vehicles
at such a premises;
Examples of a loading manager
A company that runs, or a site manager for, a distribution
centre.
Example of calculation of vehicle numbers
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At a premises on a usual business day, 3 regulated heavy
vehicles are loaded with goods, and 3 other regulated 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.
"minor risk offence" means an
offence that is specified as a
minor risk offence in Schedule 2
or the regulations;
"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;
"parties in the chain of
responsibility" see
section 97E;
"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 an area that
divides a road; or
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(iii) on a footpath or
nature strip
adjacent to a road;
or
(iv) on an area that is
not a road and that
is open to the
public and
designated for use
by cyclists or
animals; or
(v) on an area that is
not a road and that
is open to or used
by the public for
driving, riding or
parking vehicles;
or
(vi) 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 or tractor or
a motor vehicle that is registered as a type P plant-based
special-purpose vehicle.
Example of what is not plant
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- a truck-mounted crane or truck-mounted drilling rig.
"prescribed driver offence under
another law" see
section 97M(5);
"prescribed fatigue duty under
another law" see
section 97N(4);
"prime contractor" means 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.
"reasonable steps" see section 97F;
"regulated heavy vehicle" means a
heavy truck or a bus, but does not
include
(a) plant; or
(b) a motor home;
Note 1 A regulated heavy vehicle is a sub-category of heavy
vehicle as defined in section 6.
"rest time" , for a driver, means the
time that is not work time for the
driver;
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"risk category", for a contravention
of a fatigue management
requirement, means one of the
following categories of offences:
(a) minor risk offence;
(b) substantial risk offence;
(c) severe risk offence;
(d) critical risk offence;
"severe risk offence" means an
offence that is specified as a
severe risk offence in Schedule 2
or the regulations;
"sign of fatigue" see
section 97K(4);
"standard hours" means the
prescribed work times and rest
times that apply to a driver if the
driver is not working under a
BFM accreditation or an AFM
accreditation;
"substantial risk offence" means an
offence that is specified as a
substantial risk offence in
Schedule 2 or the regulations;
"work diary" means a diary of work
time and rest time required to be
kept by a driver under the
regulations;
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"work/rest hours", in relation to a
driver, means the maximum work
time and the minimum rest time
that the driver must have under
that driver's work/rest hours
option;
"work/rest hours exemption" is an
exemption under the regulations
from complying with restrictions
imposed under this Act or the
regulations in relation to work
time or rest time;
"work/rest hours option", in relation
to a driver, means whichever one
of the following applies to the
driver at that time under this Act:
(a) standard hours;
(b) BFM hours;
(c) AFM hours;
(d) the hours specified in a
work/rest hours
exemption.
"work time" for a driver, means
(a) the time that the driver
spends driving a regulated
heavy vehicle, whether or
not it is on a public street;
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
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
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activity mentioned
in subparagraphs
(i) to (vi); and
(c) recording information, or
completing a document,
in accordance with the
regulations or otherwise,
in relation to the operation
of the vehicle.
Division 2 Who this Part applies to
97D. Who is a driver
For the purposes of this Part, 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.
97E. Who are parties in chain of responsibility
(1) For the purposes of this Part, the
following people are parties in the chain
of responsibility in relation to a regulated
heavy vehicle:
(a) the employer of the driver of the
vehicle;
(b) the prime contractor of the driver;
(c) the operator of the vehicle;
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(d) the scheduler of
(i) goods or passengers for
transport by the vehicle;
and
(ii) the driver of the vehicle;
(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 It is the performance of any of 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 one 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 those capacities.
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Division 3 Reasonable steps
97F. What are reasonable steps
(1) If a provision of this Part requires a
person to take all reasonable steps to
ensure that a specified thing will not
cause a particular outcome, without
limiting the ways in which a person may
take those steps, he or she is to be
regarded as having taken those steps if he
or she
(a) identifies and assesses
(i) what aspects of the
specified thing might
cause the particular
outcome; and
(ii) the risks that those aspects
might cause the particular
outcome; and
(iii) if there is a substantial
risk that an aspect might
cause the particular
outcome, what he or she
can reasonably do to
eliminate that risk, or if it
is not reasonably possible
to eliminate that risk, to
minimise that risk; and
(b) repeats that identification and
assessment
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(i) if anything occurs that
may adversely affect, or
that indicates that there
may be a problem with,
the specified thing; and
(ii) in any event, at least
annually; and
(c) does the things identified under
paragraph (a)(ii) as being things
that he or she can reasonably do;
and
(d) documents the actions that he or
she has taken under
paragraphs (a), (b) and (c), and
retains that documentation for at
least 3 years.
Example of a specified thing and a particular outcome
Among other things, section 97P requires a scheduler to take
all reasonable steps to ensure that a driver's schedule (the
specified thing in this case) will not cause the driver to drive
while impaired by fatigue (the particular outcome).
Examples of ways to identify and assess what aspects of
specified things might cause drivers to commit fatigue-
related offences
- consulting drivers, other parties in the chain of
responsibility, unions and industry associations
- 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
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- 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.
Examples of things that can be done to eliminate or
minimise risks arising from those aspects
- 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
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- avoiding incentives or demands in commercial
arrangements that may cause fatigue or breaches of work/rest
hours
- a system for monitoring and remedying problems related to
fatigue and work/rest hours.
(2) 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) the circumstances of the offence
(e.g. the risk category that the
relevant offence belongs to); and
(e) the degree to which the person
(either personally or through an
agent or employee) had the
ability to eliminate, prevent or
reduce an aspect, or to eliminate a
risk or to minimise the likelihood
of a risk eventuating; and
(f) the experience, expertise and
knowledge that the person, or the
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person's agent or employee, had
or ought reasonably to have had;
and
(g) 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
(h) the cost of eliminating a risk or
minimising the likelihood of a
risk eventuating; and
(i) the body of fatigue knowledge.
97G. Deciding whether persons ought reasonably
to have known
If, in a prosecution for an offence against
this Part, 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.
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Division 4 Causation
97H. Intention irrelevant in determining
causation
For the purposes of this Part, a person
can cause something to happen even
though he or she had no intention of
causing that thing to happen.
97I. Cause includes "contributing to causing"
and "encourage"
For the purposes of this Part, a reference
to causing a thing is to be read as
including a reference to contributing to
causing the thing, and to encouraging the
thing.
97J. Objective reasonableness test to be used in
determining causation
(1) This section applies if an act of, or a
failure to act by, a duty holder causes a
fatigue offence to occur.
(2) If it is likely that a reasonable person
would have foreseen that the act, or
failure to act, would be reasonably likely
to cause the occurrence of the fatigue
offence, for the purposes of this Part
there is created a rebuttable presumption
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that the duty holder caused the
occurrence of the fatigue offence.
(3) In this section
"duty holder" means a person on
whom a duty is imposed by
section 97O, 97P, 97Q or 97R to
take reasonable steps to ensure
that a thing will not cause a
fatigue offence;
"fatigue offence" means an
occurrence in which the driver of
a regulated heavy vehicle drives
the vehicle
(a) while impaired by fatigue;
or
(b) while in breach of his or
her work/rest hours
option; or
(c) in breach of another law
in order to avoid driving
while impaired by fatigue
or while in breach of his
or her work/rest hours
option.
Note Section 97L explains what impaired by fatigue
means.
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Division 5 What is fatigue
97K. What is fatigue
(1) Fatigue includes
(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 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
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fatigue while driving a regulated heavy
vehicle on a public street (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 public street
(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 judgment or memory
- making more mistakes than usual
- drowsiness, or falling asleep, at work (including micro
sleeps)
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- 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.
97L. What is impaired by fatigue
(1) A driver is impaired by fatigue if the
driver is fatigued to the extent that he or
she cannot drive the vehicle without a
risk to safety.
(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,
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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; and
Examples
- the circumstances of any incident, crash or near miss
- poor driving judgment
- 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.
(3) A court may consider a driver to be
impaired by fatigue even if the driver has
complied with any requirements under
this Act or under any other legislation.
(4) In proceedings for an offence under this
Part, 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.
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(5) A "statement by the complainant" is a
statement in a complaint or charge made
by the person bringing the proceedings.
Division 6 Duty to avoid and prevent driver fatigue
97M. Driver's duty to avoid driver fatigue
(1) A person must not drive a regulated
heavy vehicle on a public street while he
or she is impaired by fatigue.
Penalty: In the case of
(a) a first offence, a fine not
exceeding 50 penalty
units; or
(b) a subsequent offence, a
fine not exceeding 100
penalty units.
Note A driver may be impaired by fatigue even though he
or she has complied with other requirements of this Act
see section 97L(3).
(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.
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(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.
97N. Duty of party in 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 public street while the person is
impaired by fatigue.
Penalty: In the case of
(a) an individual, a fine not
exceeding 100 penalty
units; or
(b) a body corporate, a fine
not exceeding 500 penalty
units.
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(2) An offence against subsection (1) is an
offence of absolute liability.
Note 1 Section 97E explains who are parties in the chain of
responsibility.
Note 2 Section 97F explains what reasonable steps are.
(3) For the purposes of subsection (1),
evidence
(a) that a party complied with a
relevant prescribed fatigue duty
under another law is evidence
that the party took all the
reasonable steps required by that
subsection; and
(b) that an operator complied with
the requirements of a BFM or
AFM accreditation is evidence
that the operator took all the
reasonable steps required by that
subsection.
(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.
(5) In a prosecution under subsection (1), it
is not necessary to prove that any
particular person drove, or would or may
have driven, the vehicle on a public street
while impaired by fatigue.
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Division 7 Additional duties of certain parties in the chain
of responsibility
97O. Duty of employer, prime contractor and
operator
(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 of the
vehicle is to make a journey for
the operator.
(2) The employer, prime contractor and
operator each must take all reasonable
steps to ensure that his or her business
practices will not cause 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 in
order to avoid driving while
impaired by fatigue or while in
breach of his or her work/rest
hours option.
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Penalty: In the case of
(a) an individual
(i) for a first offence,
a fine not
exceeding 50
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 100
penalty units; or
(b) a body corporate
(i) for a first offence,
a fine not
exceeding 250
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 500
penalty units.
Note 1 Section 97F explains what reasonable steps are.
Note 2 Section 97L explains what impaired by fatigue
means.
(3) The employer must not cause the driver
to drive the vehicle unless
(a) the employer has complied with
subsection (2); and
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(b) the employer, after making
reasonable inquiries, is satisfied
that the scheduler has complied
with section 97P.
Penalty: In the case of
(a) an individual
(i) for a first offence,
a fine not
exceeding 20
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 50
penalty units; or
(b) a body corporate
(i) for a first offence,
a fine not
exceeding 100
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 250
penalty units.
(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
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(a) the prime contractor or operator,
as the case may be, 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 97P.
Penalty: In the case of
(a) an individual
(i) for a first offence,
a fine not
exceeding 20
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 50
penalty units; or
(b) a body corporate
(i) for a first offence,
a fine not
exceeding 100
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 250
penalty units.
(5) In this section
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"business practices" means the
practices of the employer, prime
contractor or operator in running
his or her business, and
includes
(a) the operating policies and
procedures of the business; and
(b) the human resource and contract
management arrangements of the
business; and
(c) arrangements for managing
safety.
(6) An offence against subsection (2), (3) or
(4) is an offence of absolute liability.
97P. Duty of scheduler
(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 the
driver to
(a) drive while impaired by fatigue;
or
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(b) drive while in breach of his or her
work/rest hours option; or
(c) drive in breach of another law in
order to avoid driving while
impaired by fatigue or while in
breach of his or her work/rest
hours option.
Penalty: In the case of
(a) an individual
(i) for a first offence,
a fine not
exceeding 50
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 100
penalty units; or
(b) a body corporate
(i) for a first offence,
a fine not
exceeding 250
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 500
penalty units.
Note 1 Section 97F explains what reasonable steps are.
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Note 2 Section 97L explains what impaired by fatigue
means.
(3) The scheduler must not cause 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
(ii) traffic conditions and
other delays that could
reasonably be expected.
Penalty: In the case of
(a) an individual
(i) for a first offence,
a fine not
exceeding 20
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 50
penalty units; or
(b) a body corporate
43
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s. 6
(i) for a first offence,
a fine not
exceeding 100
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 250
penalty units.
Example of ways to take rest breaks
- ensuring that a driver is able to take a short rest break
at an appropriate 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.
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.
(4) An offence against subsection (2) or (3)
is an offence of absolute liability.
97Q. Duty of consignor and consignee
(1) This section applies to
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(a) a consignor who engages a
particular operator of a regulated
heavy vehicle, either directly or
indirectly or through an agent or
other intermediary, to transport
goods on his or her behalf by
road for reward or other business
purposes; and
(b) a consignee who
(i) with his or her 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 regulated
heavy vehicle; and
(ii) knows, or who ought
reasonably to have
known, that the goods
were to be transported by
road.
(2) A consignor or consignee each must take
all reasonable steps to ensure that the
terms of consignment (e.g. delivery
times) will not cause the driver of the
vehicle that is to transport the goods to
(a) drive while impaired by fatigue;
or
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(b) drive while in breach of his or her
work/rest hours option; or
(c) drive in breach of another law in
order to avoid driving while
impaired by fatigue or while in
breach of his or her work/rest
hours option.
Penalty: In the case of
(a) an individual
(i) for a first offence,
a fine not
exceeding 50
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 100
penalty units; or
(b) a body corporate
(i) for a first offence,
a fine not
exceeding 250
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 500
penalty units.
Note 1 Section 97F explains what reasonable steps are.
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Note 2 Section 97L explains what impaired by fatigue
means.
(3) The consignor and consignee each must
also take all reasonable steps to ensure
that the terms of consignment (e.g.
delivery times) will not cause the
employer of an employed driver, the
prime contractor of a self-employed
driver or the operator of the regulated
heavy vehicle to cause 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 in
order to avoid driving while
impaired by fatigue or while in
breach of his or her work/rest
hours option.
Penalty: In the case of
(a) an individual
(i) for a first offence,
a fine not
exceeding 50
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 100
penalty units; or
47
Heavy Vehicle Road Transport Amendment Act 2009
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s. 6
(b) a body corporate
(i) for a first offence,
a fine not
exceeding 250
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 500
penalty units.
Note 1 Section 97F explains what reasonable steps are.
Note 2 Section 97L explains what impaired by fatigue
means.
(4) A consignor or 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 subsections (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 97O; and
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(ii) the scheduler has
complied with
section 97P; 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 97O; and
(ii) the scheduler has
complied with
section 97P.
Penalty: In the case of
(a) an individual
(i) for a first offence,
a fine not
exceeding 20
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 50
penalty units; or
(b) a body corporate
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(i) for a first offence,
a fine not
exceeding 100
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 250
penalty units.
(5) A consignor or consignee each 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 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 in
order to avoid driving while
impaired by fatigue or while in
breach of his or her work/rest
hours option.
Penalty: In the case of
(a) an individual
(i) for a first offence,
a fine not
exceeding 50
penalty units; or
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(ii) for a subsequent
offence, a fine not
exceeding 100
penalty units; or
(b) a body corporate
(i) for a first offence,
a fine not
exceeding 250
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 500
penalty units.
Note 1 Section 97F explains what reasonable steps are.
Note 2 Section 97L explains what impaired by fatigue
means.
(6) Subsection (5) does not apply if the
consignor or consignee, before making
the demand
(a) has complied with subsections (2)
and (3); and
(b) is satisfied, after making
reasonable inquiries, that the
making of the demand will not
cause a person to fail to comply
with section 97P.
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(7) An offence against subsection (2), (3),
(4) or (5) is an offence of absolute
liability.
97R. Duty of loading manager
(1) A loading manager must take all
reasonable steps to ensure that the
arrangements for loading and unloading
regulated heavy vehicles at the premises
in respect of which he or she is the
loading manager will not cause 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 in
order to avoid driving while
impaired by fatigue or while in
breach of his or her work/rest
hours option.
Penalty: In the case of
(a) an individual
(i) for a first offence,
a fine not
exceeding 50
penalty units; or
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Heavy Vehicle Road Transport Amendment Act 2009
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s. 6
(ii) for a subsequent
offence, a fine not
exceeding 100
penalty units; or
(b) a body corporate
(i) for a first offence,
a fine not
exceeding 250
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 500
penalty units.
Examples of reasonable steps to comply with subsection
(1)
- 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 prescribed work and rest times.
Note 1 Section 97F explains what reasonable steps are.
Note 2 Section 97L explains what impaired by fatigue
means.
(2) If the loading manager or a person acting
under his or her supervision or control
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(a) has advised the driver, either
directly or indirectly, of when the
loading or unloading of the
vehicle is to start, and the loading
manager or person becomes
aware that the loading or
unloading 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 or unloading of the
vehicle is to finish, and the
loading manager or person
becomes aware that the loading
or unloading will, or is likely to,
finish more than 30 minutes late;
or
(c) is unable to advise the driver of
when the loading or unloading of
the vehicle is to start; or
(d) is unable to advise the driver of
when the loading or unloading 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.
Penalty: In the case of
(a) an individual
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Heavy Vehicle Road Transport Amendment Act 2009
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(i) for a first offence,
a fine not
exceeding 20
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 50
penalty units; or
(b) a body corporate
(i) for a first offence,
a fine not
exceeding 100
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 250
penalty units.
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.
Note 1 Section 97F explains what reasonable steps are.
Note 2 Section 97L explains what impaired by fatigue
means.
(3) An offence against subsection (1) or (2)
is an offence of absolute liability.
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Division 8 Certain requests, contracts &c. prohibited
97S. Certain requests &c. 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
(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 in
order to avoid driving while
impaired by fatigue or while in
breach of his or her work/rest
hours option.
Penalty: In the case of
(a) an individual, a fine not
exceeding 100 penalty
units; or
(b) a body corporate, a fine
not exceeding 500 penalty
units.
Example of a requirement that contravenes this section
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- 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.
Note Section 97L explains what impaired by fatigue
means.
97T. Certain contracts &c. 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
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 in
order to avoid driving while
impaired by fatigue or while in
breach of his or her work/rest
hours option.
Penalty: In the case of
(a) an individual, a fine not
exceeding 100 penalty
units; or
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(b) a body corporate, a fine
not exceeding 500 penalty
units.
Note Section 97L explains what impaired by fatigue
means.
(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 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 in
order to avoid driving while
impaired by fatigue or while in
breach of his or her work/rest
hours option.
Penalty: In the case of
(a) an individual, a fine not
exceeding 100 penalty
units; or
(b) a body corporate, a fine
not exceeding 500 penalty
units.
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Note Section 97L explains what impaired by fatigue
means.
Division 9 Compliance and enforcement
97U. Extra-territorial offences
Proceedings may be taken against a
person in respect of a possible offence
under this Part or a corresponding fatigue
law, and the person may be convicted of
the offence, or be otherwise dealt with
under this Part in relation to the offence,
even if the offence was, or appears to
have been, committed by the person
while the person was not in this
jurisdiction.
97V. Fatigue and work/rest hours breaches
(1) This section applies if an authorised
officer or police officer reasonably
believes
(a) that a driver has committed an
offence against section 97M
(Driver's duty to avoid driver
fatigue) or a provision of the
regulations imposing a duty on
that driver in relation to his or her
work/rest hours; and
(b) either
(i) that the driver is impaired
by fatigue that may have
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s. 6
been caused by the
occurrence of the offence;
or
(ii) that the commission of the
offence occurred
sufficiently recently that
there is a risk that the
driver may be impaired by
fatigue.
(2) The authorised officer or police officer
(a) in the case of a minor risk offence
or a substantial risk offence that
relates to work/rest hours
(i) if the driver has not had
the required rest break,
may direct the driver to
take rest immediately, or
to take additional rest at
his or her next required
rest break, to compensate
for the shortfall; or
(ii) if the driver has worked
more than the permitted
work time, may direct the
driver to work reduced
hours in the next relevant
period to compensate for
the excess; or
(b) in the case of a severe risk
offence or critical risk offence
that relates to work/rest hours
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Heavy Vehicle Road Transport Amendment Act 2009
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(i) if the driver has not had
the required rest time,
must direct the driver to
take rest immediately to
compensate for the
shortfall; or
(ii) if the driver has not had
the required night rest
time, must direct the
driver to take the next
night rest time to
compensate for the
shortfall; or
(iii) if the driver has worked
more than the permitted
work time, must direct the
driver to work reduced
hours in the next relevant
period to compensate for
the excess; or
(c) if the officer believes, on
reasonable grounds, that the
driver is impaired by fatigue
(i) may direct the driver not
to work for a period of
time that will be
sufficient, in the
reasonable opinion of the
officer, to enable the
driver to obtain sufficient
rest to be able to complete
the next stage of his or her
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journey unimpaired by
fatigue; or
(ii) if the officer has observed
the driver driving in a
way that the officer
believes, on reasonable
grounds, is dangerous,
may direct the driver to
stop driving immediately,
and may authorise a
qualified person to move
the vehicle to a suitable
rest place; or
(d) may direct the driver not to work
for a 24-hour period if
(i) the driver fails to produce
his or her work diary, or
produces a document that
the officer believes is a
purported work diary; or
(ii) the officer believes, on
reasonable grounds, that
the work diary produced
by the driver for
inspection cannot be
relied on as an accurate
record of the time spent
recently by the driver
working or resting.
(3) If subsection (2)(c)(i) applies, the officer
must specify a period of time and must
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record his or her direction in the driver's
work diary.
(4) In the case of a severe risk offence or
critical risk offence, the authorised
officer or police officer may allow the
driver to delay complying with a
direction under subsection (2)(b)(i) or
(iii), for a period of up to one hour, if the
officer reasonably believes that
(a) there is no suitable rest place
nearby, and it would be
reasonably safe to allow the
driver to continue to drive for that
period; or
(b) it is necessary for the driver to be
given time to attend to, or to
secure, the load on the vehicle,
before taking rest.
(5) For the purposes of section 151, a
direction made by an authorised officer
or police officer under this section is
taken to be prescribed as an
administrative action.
Example
If an enforcement officer from one jurisdiction gives a
direction to a driver not to work for a specified period of
time under this section, that direction continues to have
effect even if the driver passes into another jurisdiction.
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(6) For the purposes of this section, a person
is "qualified" to move a vehicle if the
person
(a) holds an Australian driver licence
of the appropriate class to drive it
and the Australian driver licence
is not suspended; and
(b) is not prevented by or under a law
(including, for example, by the
conditions of the licence) from
driving it at the relevant time.
(7) In this section
"required rest break" means a rest
break in accordance with all laws
regulating the work and rest times
of the driver;
"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; or
(c) a place declared by the
regulations to be a
suitable rest place
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but does not include a place
declared by the regulations not to
be a suitable rest place.
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.
97W. Duty of officers to annotate driver's work
diary
(1) This section applies if an authorised
officer or police officer stops a driver for
compliance purposes using a power
conferred on the officer under this Act.
(2) If the officer detains the driver for a
period of 5 minutes or longer, the driver
may request the officer to record the
following details in the driver's work
diary:
(a) the officer's identifying details;
(b) the time, date and place at which
the officer stopped the driver;
(c) the length of time that the driver
was stopped while the officer
exercised his or her enforcement
powers.
(3) An officer must comply with a request
made under subsection (2).
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(4) An officer may comply with
subsection (2)(a) by recording either his
or her name, or his or her identification
number.
(5) If more than one driver has been stopped
at a place, and the drivers are spoken to
by an officer in the order in which they
were stopped, the counting of time for
the purposes of subsection (2) only starts
once the officer begins to speak to the
driver for the purpose of pursuing any
matter in respect of which the driver was
stopped.
Note Essentially a power is exercised for compliance
purposes if it is used to find out whether laws are being
complied with or to investigate breaches or suspected
breaches of laws. Thus, this section does not apply if an
officer stops a vehicle, for instance, when there is a
roadblock, an accident or a detour.
Division 10 Regulations
97X. Regulations relating to fatigue management
The Governor may, in addition to any
regulations which he or she is
empowered to make under any other
Part, make regulations providing for
(a) the number of hours for which a
person may work in relation to a
vehicle or combination, or class
of vehicles or combinations, and
the minimum rest periods
required to be taken by that
person; and
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(b) the making, keeping, possession
and inspection of written and
electronic records in respect of
heavy vehicles or heavy
combinations and their drivers;
and
(c) duties of persons in the chain of
responsibility to ensure drivers
comply with provisions of the
regulations; and
(d) the accreditation and auditing of
operator fatigue management
systems; and
(e) exemptions from the operation of
this Act or any provision of this
Act or the regulations, either
conditionally and
unconditionally; and
(f) the granting of exemptions from
the operation of this Act or any
provision of this Act or the
regulations; and
(g) the recognition of decisions in
other jurisdictions in relation to
the management of fatigue in
drivers of heavy vehicles or
heavy combinations; and
(h) the reconsideration and review of
decisions; and
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(i) the referral of matters to the
Fatigue Authorities Panel and
mutual recognition of decisions in
other jurisdictions; and
(j) the admissibility of documents
produced by an electronic work
diary; and
(k) incidental and ancillary matters.
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PART 4B SPEEDING COMPLIANCE
Division 1 Preliminary
97Y. Purpose of Part
(1) The principal purpose 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) In outline, 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
(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
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the vehicle to exceed speed
limits; and
(d) requires certain people 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 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.
97Z. Interpretation of Part 4B
In this Part
"loading manager" means
(a) a person who manages, or
who is responsible for the
operation of, a premises at
which usually on a
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business day at least 5
heavy vehicles
(i) are loaded with
goods for
transport; or
(ii) have goods that
the vehicles have
transported
unloaded; or
(b) a person who directly or
indirectly supervises,
manages or controls the
loading or unloading of
heavy vehicles at such a
premises;
Examples of a loading manager
A company that runs, or a site manager for, a distribution
centre.
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.
"prime contractor" means a person
who engages someone else to
drive a heavy vehicle under a
contract for services;
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Example of a prime contractor
A logistics business that engages a subcontractor to
transport goods.
"reasonable steps" see
section 97ZL;
"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;
"speeding offence" means a speeding
offence within the meaning of the
Vehicle and Traffic Act 1999.
Division 2 Causation
97ZA. Intention irrelevant in determining
causation
For the purposes of this Part, a person
can cause something to happen even
though he or she had no intention of
causing that thing to happen.
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97ZB. Cause includes "contribute to causing" and
"encourage"
For the purposes of this Part, a reference
to causing a thing is to be read as
including a reference to contributing to
causing the thing, and to encouraging the
thing.
97ZC. Objective reasonableness test to be used in
determining causation
(1) This section applies if an act of, or a
failure to act by, a duty holder causes a
speeding offence to occur.
(2) If it is likely that a reasonable person
would have foreseen that the act, or
failure to act, would be reasonably likely
to cause the occurrence of the speeding
offence, for the purposes of this Part
there is created a rebuttable presumption
that the duty holder caused the
occurrence of the speeding offence.
(3) In this section
"duty holder" means a person on
whom a duty is imposed by this
Part to take reasonable steps to
ensure that a thing will not cause
a speeding offence.
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Division 3 Specific duties and offences
97ZD. Duty concerning business practices
(1) This section 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 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 his or her business
practices will not cause the driver to
exceed any speed limit that applies to the
vehicle.
Penalty: In the case of
(a) an individual
(i) for a first offence,
a fine not
exceeding 50
penalty units; or
(ii) for a subsequent
offence, a fine not
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exceeding 100
penalty units; or
(b) a body corporate
(i) for a first offence,
a fine not
exceeding 250
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 500
penalty units.
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).
Note Section 97ZL(2) sets out some of the factors a court
may consider in determining whether a person has taken all
reasonable steps. Section 97ZL(1) sets out one method by
which an employer, prime contractor or operator can take all
reasonable steps for the purposes of this subsection.
(3) The employer must not cause the driver
to drive the vehicle unless
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(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 97ZF.
Penalty: In the case of
(a) an individual
(i) for a first offence,
a fine not
exceeding 20
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 50
penalty units; or
(b) a body corporate
(i) for a first offence,
a fine not
exceeding 100
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 250
penalty units.
(4) The prime contractor and operator each
must not cause the driver to drive the
vehicle unless
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(a) the prime contractor or operator,
as the case may be, 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 97ZF.
Penalty: In the case of
(a) an individual
(i) for a first offence,
a fine not
exceeding 20
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 50
penalty units; or
(b) a body corporate
(i) for a first offence,
a fine not
exceeding 100
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 250
penalty units.
(5) In this section
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"business practice" means the
practices of the employer, prime
contractor or operator in running
his or her business, and includes
(a) the operating policies and
procedures of the business; and
(b) the human resource and contract
management arrangements of the
business; and
(c) arrangements for managing
safety.
(6) An offence against subsection (2), (3) or
(4) is an offence of absolute liability.
97ZE. Duty to ensure offences are not committed
(1) This section 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 a heavy vehicle if
the driver of the vehicle is to
make a journey in the vehicle for
the operator.
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(2) A person to whom this section 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.
Penalty: In the case of
(a) a Level 1 offence
(i) for an individual,
a fine not
exceeding 10
penalty units; or
(ii) for a body
corporate, a fine
not exceeding 50
penalty units; or
(b) a Level 2 offence
(i) for an individual,
a fine not
exceeding 20
penalty units; or
(ii) for a body
corporate, a fine
not exceeding 100
penalty units; or
(c) a Level 3 offence
(i) for an individual,
a fine not
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exceeding 50
penalty units; or
(ii) for a body
corporate, a fine
not exceeding 250
penalty units.
Note Subsection (6) sets out how the relevant level of the
offence is to be determined.
(3) Despite subsection (2), a person is not
liable under that subsection if the vehicle
was a combination, and neither the driver
nor the towing vehicle was subject to the
person's control.
(4) It is a defence in proceedings for an
offence under this section if the
defendant establishes that
(a) he or she did not know, and could
not reasonably be expected to
have known, of the conduct that
constituted the offence; and
(b) either
(i) he or she took all
reasonable steps to
prevent that conduct from
occurring; or
(ii) there were no steps that
he or she could
reasonably have been
expected to have taken to
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prevent that conduct from
occurring.
(5) For the purposes of this section
(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
(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.
(6) For the purposes of subsection (2), the
levels of offence are to be determined in
accordance with the following table:
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Speed limit at the Penalty level where Penalty level where
place where the recorded speed less recorded speed
speeding offence than 15 km/h over equal to or more than
occurs limit 15 km/h over limit
1. 60 km/h or less Level 1 Level 1
2. More than 60km/h but Level 1 Level 2
less than 100 km/h
3. 100 km/h or more Level 2 Level 3
(7) Subject to subsections (3) and (4), an
offence against subsection (2) is an
offence of absolute liability.
97ZF. Duty of scheduler
(1) This section applies to the scheduler of
(a) a heavy vehicle; or
(b) the 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 the
driver to exceed any speed limit that
applies to the vehicle.
Penalty: In the case of
(a) a first offence, a fine not
exceeding 50 penalty
units; or
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(b) a subsequent offence, a
fine not exceeding 100
penalty units.
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.
Note Section 97ZL(2) sets out some of the factors a court
may consider in determining whether a person has taken all
reasonable steps. Section 97ZL(1) sets out one method by
which a scheduler can take all reasonable steps for the
purposes of this subsection.
(3) The scheduler must not cause 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) compliance with all speed
limits applying to the
vehicle; and
(ii) the driver to take all
required rest breaks (in
accordance with all laws
regulating the work and
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rest hours of the driver);
and
(iii) traffic conditions and
other delays that could
reasonably be expected.
Penalty: In the case of
(a) a first offence, a fine not
exceeding 20 penalty
units; or
(b) a subsequent offence, a
fine not exceeding 50
penalty units.
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.
(4) An offence against subsection (2) or (3)
is an offence of absolute liability.
97ZG. Duty of consignor and consignee
(1) This section applies to
(a) a consignor who engages a
particular operator of a heavy
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vehicle or heavy combination,
either directly or indirectly or
through an agent or other
intermediary, to transport goods
on his or her behalf by road for
reward or other business
purposes; and
(b) a consignee who
(i) with his or her 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 heavy
combination; and
(ii) knows, or who ought
reasonably to have
known, that the goods
were to be transported by
road.
(2) A consignor or consignee each must take
all reasonable steps to ensure that the
terms of consignment (e.g. delivery
times) will not cause the driver of the
vehicle that is to transport the goods to
exceed any speed limit that applies to the
vehicle.
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Penalty: In the case of
(a) an individual
(i) for a first offence,
a fine not
exceeding 50
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 100
penalty units; or
(b) a body corporate
(i) for a first offence,
a fine not
exceeding 250
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 500
penalty units.
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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Note Section 97ZL(2) sets out some of the factors a court
may consider in determining whether a person has taken all
reasonable steps. Section 97ZL(1) sets out one method by
which a consignor or consignee can take all reasonable steps
for the purposes of this subsection.
(3) The consignor and consignee each must
also take all reasonable steps to ensure
that the terms of consignment (e.g.
delivery times) will not cause 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.
Penalty: In the case of
(a) an individual
(i) for a first offence,
a fine not
exceeding 50
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 100
penalty units; or
(b) a body corporate
(i) for a first offence,
a fine not
exceeding 250
penalty units; or
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(ii) for a subsequent
offence, a fine not
exceeding 500
penalty units.
Note See the examples and note under subsection (2).
(4) A consignor or consignee 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
he or she
(a) has complied with subsections (2)
and (3); and
(b) is satisfied, after making
reasonable inquiries, that the
making of the demand will not
cause a person to fail to comply
with section 97ZF.
Penalty: In the case of
(a) an individual
(i) for a first offence,
a fine not
exceeding 20
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 50
penalty units; or
(b) a body corporate
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(i) for a first offence,
a fine not
exceeding 100
penalty units; or
(ii) for a subsequent
offence, a fine not
exceeding 250
penalty units.
(5) An offence against subsection (2), (3) or
(4) is an offence of absolute liability.
97ZH. Duty of loading manager
(1) 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 he or she is the loading
manager will not cause the driver of a
heavy vehicle to exceed any speed limit
that applies to the vehicle.
Penalty: In the case of
(a) a first offence, a fine not
exceeding 50 penalty
units; or
(b) a subsequent offence, a
fine not exceeding 100
penalty units.
Examples of some reasonable steps that can be taken
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- 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.
Note Section 97ZL(2) sets out some of the factors a court
may consider in determining whether a person has taken all
reasonable steps. Section 97ZL(1) sets out one method by
which a loading manager can take all reasonable steps for
the purposes of this subsection.
(2) An offence against subsection (1) is an
offence of absolute liability.
Division 4 Certain requests, contracts &c., prohibited
97ZI. Who are parties in chain of responsibility
(1) For the purposes of this Part, the
following people are parties in the chain
of responsibility in relation to a heavy
vehicle:
(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
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(i) goods or passengers for
transport by the vehicle;
and
(ii) the driver of the vehicle;
(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 It is the performance of any of 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 one 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 those capacities.
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97ZJ. Certain requests 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.
Penalty: Fine not exceeding 100 penalty
units.
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.
Note Section 97ZI sets out who are the parties in the chain
of responsibility.
97ZK. Certain contracts and agreements 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.
Penalty: In the case of
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(a) an individual, a fine not
exceeding 100 penalty
units; or
(b) a body corporate, a fine
not exceeding 500 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 an incentive
for a party in the chain of responsibility
to cause the driver to exceed any speed
limit while driving a heavy vehicle.
Penalty: In the case of
(a) an individual, a fine not
exceeding 100 penalty
units; or
(b) a body corporate, a fine
not exceeding 500 penalty
units.
Note Section 97ZI sets out who are the parties in the chain
of responsibility.
Division 5 Compliance and enforcement
97ZL. Reasonable steps
(1) Without limiting the ways in which a
person may take all reasonable steps for
the purposes of this Part, a person is to be
regarded as having taken all reasonable
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steps to ensure that a specified thing will
not cause a driver of a heavy vehicle to
exceed any speed limit that applies to
that vehicle if the person
(a) identifies and assesses
(i) what aspects of the
specified thing might
cause the driver to exceed
a speed limit; and
(ii) the risks that those aspects
might cause the driver to
exceed a speed limit; and
(iii) if there is a substantial
risk that an aspect might
cause the driver to exceed
a speed limit, what the
person can reasonably do
to eliminate that risk, or if
it is not reasonably
possible to eliminate that
risk, to minimise that risk;
and
(b) repeats that identification and
assessment
(i) if anything occurs that
may adversely affect, or
that indicates that there
may be a problem with,
the specified thing; and
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(ii) in any event, at least
annually; and
(c) does the things identified under
paragraph (a)(iii) as being things
that he or she can reasonably do;
and
(d) documents the actions that he or
she has taken under
paragraphs (a), (b) and (c), and
retains that documentation for at
least 3 years.
(2) A court may have regard to anything that
it considers to be relevant when 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 (e.g.
the risk category that the offence
belongs to); and
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(e) the degree to which the person
(either personally or through an
agent or employee) had the
ability to eliminate, prevent or
reduce an aspect, or to eliminate a
risk or to minimise the likelihood
of a risk eventuating; and
(f) the experience, expertise and
knowledge that the person, or the
person's agent or employee, had
or ought reasonably to have had;
and
(g) 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
(h) the cost of eliminating a risk or
minimising the likelihood of a
risk eventuating.
97ZM. Evidential matters
(1) If, in a prosecution for an offence against
this Part, 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
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(b) the circumstances of the offence;
and
(c) any other matters specified by the
regulations for the purposes of
this section.
(2) In a prosecution under this Part, it is not
necessary to prove that a driver exceeded
a speed limit.
7. Section 163 amended (Regulations)
Section 163 of the Principal Act is amended as
follows:
(a) by omitting from subsection (4)(b) "100"
and substituting "200";
(b) by inserting in subsection (5) "granted,"
after "determined,";
(c) by omitting from subsection (5) "the
Authority" and substituting "any person
or body specified in the regulations".
8. Section 163A inserted
After section 163 of the Principal Act, the
following section is inserted in Division 3:
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163A. Regulations relating to intelligent transport
systems
(1) The Governor may, in addition to any
regulations that he or she is empowered
to make under this Part, make regulations
providing for matters relating to the
operation of intelligent transport systems.
(2) In particular, the regulations may provide
for the following:
(a) conditions relating to the use of
intelligent transport systems;
(b) the collection, storage, use and
disclosure of information
obtained by the use of an
intelligent transport system, or
obtained for the purposes of such
a system or a proposed system;
(c) the records to be kept in relation
to information obtained by the
use of an intelligent transport
system;
(d) the reports to be made in relation
to the operation of, or any other
matter relating to, an intelligent
transport system;
(e) regulating or prohibiting
tampering with intelligent
transport systems;
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(f) notification of persons about
whom or in respect of whom
information is obtained by the use
of an intelligent transport system;
(g) certification of intelligent
transport systems or providers of
intelligent transport systems;
(h) the functions, powers and
obligations of service providers,
the Transport Certification
Australia Ltd (ACN 113 379 936)
and auditors of intelligent
transport systems;
(i) monitoring and auditing of
intelligent transport systems,
providers of intelligent transport
systems and persons required or
permitted to use intelligent
transport systems;
(j) the use of certificates, reports and
other documents relating to
various matters as evidence in
any proceedings before a court or
tribunal;
(k) evidentiary presumptions as to
the correct operation and
functioning of an intelligent
transport system, other matters
relating to the operation of an
intelligent transport system and
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information obtained by using
such a system;
(l) incidental and ancillary matters.
9. Schedule 2 inserted
After Schedule 1 to the Principal Act, the
following Schedule is inserted:
SCHEDULE 2 FATIGUE MANAGEMENT RISK
CATEGORIES
Section 97C
Provision of Act Risk category
1. Section 97M(1) Severe risk offence
2. Section 97N(1) Critical risk offence
3. Section 97O(2) Severe risk offence
4. Section 97O(3) Substantial risk offence
5. Section 97O(4) Substantial risk offence
6. Section 97P(2) Severe risk offence
7. Section 97P(3) Substantial risk offence
8. Section 97Q(2) Severe risk offence
9. Section 97Q(3) Severe risk offence
10. Section 97Q(4) Substantial risk offence
11. Section 97Q(5) Severe risk offence
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Provision of Act Risk category
12. Section 97R(1) Severe risk offence
13. Section 97R(2) Substantial risk offence
14. Section 97S Critical risk offence
15. Section 97T(1) Critical risk offence
16. Section 97T(2) Critical risk offence
10. Repeal of Act
This Act is repealed on the ninetieth day from
the day on which all of the provisions of this Act
commence.
Government Printer, Tasmania 101