"employed driver" means a driver who is employed by someone else to drive
a heavy vehicle;
"employer" means a person who employs someone else to drive a heavy vehicle
under a contract of employment, apprenticeship or training;
Example
A labour hire company.
"loading manager" means—
(a) a person who manages, or is
responsible for the operation of, premises at which usually on a 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 premises referred to in paragraph (a);
Example
A company that runs a distribution centre or a site manager for a distribution
centre.
"party in the chain of responsibility", in relation to a heavy vehicle, means
any one of the following persons—
(d) a prohibition on travelling
between two places in less than a specified time that applies to a driver of a
heavy vehicle for a length of road where the driver is driving the vehicle;
"work time", for a driver, has the same meaning as in Part 10A,
with the modification that a reference to "fatigue regulated heavy vehicle" is
to be taken to be a reference to "heavy vehicle".
275 Application of Commonwealth Acts Interpretation Act
1901
Penalty: For a first offence 250 penalty units, in the case of a
corporation, or 50 penalty units, in any other case;
For a subsequent offence 500 penalty units, in the case of a corporation,
or 100 penalty units, in any other case.
Examples
• 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 speedlimiters).
Note
Section 285 sets out some of the factors a court may consider in determining
whether a person has taken all reasonable steps. Section 284 sets out a method
by which an employer, prime contractor and operator can take all reasonable
steps for the purposes of this subsection.
(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.
277 Duty to ensure
offences are not committed
(1) In this section—
level 1 prohibited conduct means—
(a) the commission of an offence of
a type specified in Column 1 of item 1 of the Table (whether the speed limit
is exceeded by less than 15 km per hour or by 15 km per hour or
more); or
(b) the commission of an offence of
a type specified in Column 1 of item 2 of the Table (by exceeding the
speed limit by less than 15 km per hour);
level 2 prohibited conduct means—
(a) the commission of an offence of
a type specified in Column 1 of item 2 of the Table (by exceeding the
speed limit by 15 km per hour or more); or
(b) the commission of an offence of
a type specified in Column 1 of item 3 of the Table (by exceeding the
speed limit by less than 15 km per hour);
(c) the commission of an offence of
a type specified in Column 1 of item 4 of the Table (by exceeding the
speed limit by less than 15 km per hour);
level 3 prohibited conduct means—
(a) the commission of an offence of
a type specified in Column 1 of item 3 of the Table (by exceeding the
speed limit by 15 km per hour or more); or
(b) the commission of an offence of
a type specified in Column 1 of item 4 of the Table (by exceeding the
speed limit by 15 km per hour or more);
"Table" means the Table at the end of this section.
(b) the vehicle, or the driver of
the vehicle, at the time the prohibited conduct is committed, is subject to
the control of an employer, prime contractor or operator—
the employer, prime contractor or operator is guilty of an offence and liable
to a penalty of 50 penalty units, in the case of a corporation or
10 penalty units, in any other case.
(b) the vehicle, or the driver of
the vehicle, at the time the prohibited conduct is committed, is subject to
the control of an employer, prime contractor or operator—
(b) the vehicle, or the driver of
the vehicle, at the time the prohibited conduct is committed, is subject to
the control of an employer, prime contractor or operator—
(c) for a first offence, 250 penalty
units, in the case of a corporation, or 50 penalty units, in any other case;
(d) for a subsequent offence under
this section, 500 penalty units, in the case of a corporation, or 100 penalty
units, in any other case.
(5) A person does not commit an offence under
subsection (2), (3) or (4) if the person controls a vehicle that is one of a
group of vehicles that is being towed, but the person does not control—
(b) the vehicle that is towing the
group of vehicles.
(6) A person charged with an offence under this
section does not have the benefit of the mistake of fact defence.
Note
Section 287 sets out how subsection (6) operates.
(7) It is a defence to a charge for an offence
under this section if—
(a) the person charged with the
offence did not know and could not reasonably be expected to know of the
conduct of the driver; and
(b) either—
(i) the person
charged took all reasonable steps to prevent the driver's conduct; or
(ii) there were
no steps the person charged could reasonably be expected to have taken to
prevent the driver's conduct.
(8) In any proceeding for an offence under this
section—
(a) it is irrelevant whether the
driver has been, or will be, charged with the offence, or has been, or will
be, found guilty of the offence; and
(b) evidence that the driver has
been found guilty of the offence is evidence that the offence occurred at the
time and place, and in the circumstances, specified in the charge that
resulted in the finding of guilt; and
(c) evidence that the driver has
paid the infringement penalty payable under an infringement notice for an
offence is evidence that the offence occurred at the time and place, and in
the circumstances, specified in the infringement notice.
An offence of driving a vehicle of a type specified in Column 2 of this item
at a speed in excess of a speed limit that is 60 km per hour or less.
All
2
An offence of driving a vehicle of a type specified in Column 2 of this item
at a speed in excess of a speed limit that is more than 60 km per hour but
less than 100 km per hour.
All (except road trains that are speed limited to less than 100 km
per hour)
An offence of driving a vehicle of a type specified in Column 2 of this item
at a speed in excess of a speed limit that is more than 60 km per hour but
less than 100 km per hour.
Penalty: For a first offence, 250 penalty units, in the case of
a corporation, or 50 penalty units, in any other case;
For a subsequent offence, 500 penalty units, in the case of a
corporation, or 100 penalty units, in any other case.
Examples
•
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 285 sets out some of the factors a court may consider in determining
whether a person has taken all reasonable steps. Section 284 sets out a method
by which a scheduler can take all reasonable steps for the purposes of this
subsection.
Penalty: For a first offence, 250 penalty units, in the case of
a corporation, or 50 penalty units, in any other case;
For a subsequent offence, 500 penalty units, in the case of
a corporation, or 100 penalty units, in any other case.
Examples
•
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
timeslots for loading or unloading can be relied upon.
Note
Section 285 sets out some of the factors a court may consider in determining
whether a person has taken all reasonable steps. Section 284 sets out a method
by which a loading manager can take all reasonable steps for the purposes of
this subsection.
(2) A person charged with an offence under
subsection (1) does not have the benefit of the mistake of fact defence.
(a) with the person's authority, is
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; and
(b) knows, or who ought reasonably
to have known, the goods were to be transported by road.
"consignor" means a person who engages a particular operator of a
heavy vehicle, either directly or indirectly or through an agent or other
intermediary, to transport goods on the person's behalf by road for commercial
purposes;
(1) A person who is a consignor or consignee must
take all reasonable steps to ensure the terms of consignment, including the
delivery time, will not cause the driver of a heavy vehicle that is to
transport the consigned goods to exceed a speed limit.
Penalty: For a first offence, 250 penalty units, in the case of
a corporation, or 50 penalty units, in any other case;
For a subsequent offence, 500 penalty units, in the case of
a corporation, or 100 penalty units, in any other case.
Examples
• Ensuring
contractual arrangements and documentation relating to the consignment and
delivery of consigned 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.
Note
Section 285 sets out some of the factors a court may consider in determining
whether a person has taken all reasonable steps. Section 284 sets out a method
by which a consignor or consignee can take all reasonable steps for the
purposes of this subsection.
(2) A person who is a consignor or consignee must
take all reasonable steps to ensure the terms of the consignment, including
the delivery times—
(b) will not cause the operator of a
heavy vehicle that is to transport the consigned goods to cause the driver to
exceed a speed limit.
Penalty: For a first offence, 250 penalty units, in the case of
a corporation, or 50 penalty units, in any other case;
For a subsequent offence, 500 penalty units, in the case of
a corporation, or 100 penalty units, in any other case.
(3) A person who is a consignor or consignee must
not make a demand that affects, or that may affect, a time in a schedule for
the transport of the consigned goods by heavy vehicle unless the person—
(a) has complied with subsections
(1) and (2); and
(b) is satisfied, after making
reasonable inquiries, that the making of the demand will not cause the
scheduler of the driver or of the vehicle to contravene section 278.
Penalty: For a first offence, 100 penalty units, in the case of
a corporation, or 20 penalty units, in any other case;
For a subsequent offence, 250 penalty units, in the case of
a corporation, or 50 penalty units, in any other case.
(4) A person charged with an offence under
subsection (1), (2) or (3) does not have the benefit of the mistake of fact
defence.
Note
Section 287 sets out how subsection (4) operates.
Division 6— Certain requests, contracts etc. prohibited
Penalty: 500 penalty units, in the case of a corporation, or 100
penalty units, in any other case.
Note
Section 274 sets out who are the parties in the chain of responsibility.
Example
A requirement that the driver complete a journey in a time 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 the driver is required
to take.
Penalty: 500 penalty units, in the case of a corporation, or 100
penalty units, in any other case.
Division 7— Reasonable steps and provisions concerning defences
284 What constitutes reasonable steps
Without limiting the ways in which a person may be
regarded as having taken all reasonable steps, for the purposes of this Part,
a person must be regarded as having taken all reasonable steps to prevent an
act or omission that might cause a driver, while driving a heavy vehicle, to
exceed a speed limit, if the person—
(a) has identified and assessed the
aspects of any act or omission of theperson, that might cause the driver to
exceed a speed limit; and
(b) for each aspect the person has
identified and assessed under paragraph (a), has identified and
assessed—
(i) the risk
that the aspect might cause the driver to exceed a speedlimit; and
(ii) if there
is a substantial risk that the aspect might cause the driver to exceed a
speed limit—the measures the person can reasonably take to eliminate the
risk or, if it is not reasonably possible to eliminate the risk, to minimise
the risk; and
(c) carried out the identification
and assessment referred to in paragraphs (a) and (b)—
(i) at least
annually; and
(ii) after
anything occurs that may adversely affect the act or omission or that
indicates that there may be a problem with the act or omission; and
(d) has taken the measures
identified and assessed under paragraph (b)(ii); and
(e) has documented the actions
the person has taken under paragraphs (a), (b), (c) and (d), and retains that
documentation for at least 3 years .
285
Matters relevant to deciding whether acts or omissions constitute all
reasonable steps
Without limiting section 284, in deciding whether
the actions of a person constitute all reasonable steps, a court may have
regard to anything that it considers relevant including the following—
(a) the actions or failures to act
that the person was attempting to, or should have been attempting to address;
(b) the likelihood that harm would
eventuate;
(c) the degree of harm that would
result from any failure to comply with speed limits;
(d) if a driver has been speeding,
the circumstances and nature of the alleged offence;
(e) the degree to which the person
(either personally or through an agent or employee) had the ability to
eliminate, prevent or reduce any failure to comply with speed limits or to
eliminate or minimise a risk of harm eventuating from any failure to comply
with speed limits;
(f) the availability and suitability
of measures to eliminate failures to comply with speed limits or to eliminate
or minimise a risk of harm eventuating from any failure to comply with
speed limits;
(g) the costs of acting under
paragraphs (e) and (f);
(h) the experience, expertise and
knowledge that the person, or theperson's agent or employee had, or ought
reasonably to have had.
(1) In any proceeding for an offence against this
Part, proof that the person complied with all relevant standards and
procedures, including a registered industry code of practice and the spirit of
the code, in relation to matters to which the offence relates, is evidence
that the person took all reasonable steps to prevent the contravention.
(2) Subsection (1) is not available to a person
charged with an offence unless the person has given written notice of the
intention to prove the matters referred to in that subsection to the
prosecution.
(b) given at least 28 days before
the day fixed for the hearing of the charge.
287 Exclusion of mistake of fact
defence
If a provision of this Part states that a
person does not have the benefit of the mistake of fact defence, it is not a
defence to a charge for an offence against that provision if, at or before the
time of the conduct constituting the offence, the person was under a mistaken
but honest and reasonable belief about facts which, had they existed, would
have meant the conduct would not have constituted an offence.
Division 8— Evidence and legal proceedings
288 Deciding whether a person knew or ought
reasonably to have known something
In a proceeding for an offence against this Part,
if it is relevant to prove that someone ought reasonably to have known
something, the court must consider the following when deciding whether
the person ought reasonably to have known the thing—
(a) the person's abilities,
experience, expertise, knowledge, qualifications and training;
(b) the circumstances of the
offence;
(c) any other matters prescribed
under the regulations.
289
Commission of speeding offence is irrelevant to prosecutions
In a proceeding for an offence under this Part, other than an offence under
section 277, it is not necessary to prove that a driver, while driving a
heavy vehicle, exceeded a speed limit.
290 General enforcement powers
Nothing in this Part has the effect of preventing or excluding the use of any
other powers of enforcement available to an inspector in relation to a
relevant law or scheme.
(1) For the purposes of this Part, the penalty
applying to a subsequent offence applies if the offence of which the person is
found guilty and in respect of which the penalty is to be imposed
("subsequent offence") occurs—
(a) at a different time from another
occasion when the person has committed the offence, if the person has been
previously found guilty of the offence committed on the other occasion ( first
offence ); and
(b) the commission of the
subsequent offence was within 3 years, or another period specified by the
regulations, of the commission of the first offence.
(2) In determining the penalty that applies under
subsection (1)—
(a) the order in which the offences
were committed is irrelevant; and
(b) whether or not the offences are
subject to the same penalties is irrelevant.
(3) If the court is satisfied that a person is
guilty of an offence but cannot determine (from the information available to
the court) whether the offence is a first offence for which the person was
found guilty, the court may only impose a penalty for the offence as if it
were a first offence.
(4) When determining whether a person has
previously been found guilty of an offence under this Part, the court must
have regard to a finding of guilt for an offence committed under corresponding
provisions of a correspondinglaw.
292
Multiple offenders
(1) If more than one
person is liable to be found guilty of an offence in respect of a provision of
this Part, proceedings may be taken against any one or more of such persons in
relation to the offence.
(2) Proceedings may be taken against any person
liable to be found guilty of an offence in respect of a provision of this
Part—
(a) regardless of whether or not
proceedings have been commenced against any other person; and
(b) if proceedings have started
against any other person, regardless of whether or not those proceedings have
finished; and
(c) if proceedings have finished
against any other person, regardless of the outcome of those proceedings.
293 Other powers not affected
(1) Except where expressly provided in this Part,
nothing in this Part affects any power that a court, a tribunal, the
Corporation or an authorised officer or member of the police force has apart
from this Part.
(2) Without limiting subsection (1), nothing in
this Part affects a power or obligation under this Act or another law to vary,
suspend, cancel or otherwise deal with any licence or registration.
294 Contracting out prohibited
(1) A term of a contract that purports to exclude, limit
or modify the operation of this Part or of any provision of this Part is void
to the extent that it would otherwise have that effect.
(2) Subsection (1) does not apply to a term of a
contract to the extent that it purports to impose a requirement on a person
that is more onerous than the relevant requirement imposed by this Part.
295 Extension of time limit for
certain prosecutions
Despite anything to the contrary in section 26(4) of the
Magistrates' Court Act 1989, a proceeding for an offence under this Part may
be commenced within 2 years after the commission of the alleged offence.".