Commonwealth Consolidated Regulations Commonwealth Consolidated Regulations(regulation 3)
Model Amendments Act: Heavy Vehicle Driver Fatigue--Package No. 2
Contents
Page
1. Name
2. Purpose
3. Approval
4. Act being amended by this Act
5. Change to the reasonable steps defence
6. Duties on loading managers
7. Change to how short rest breaks may be taken
8. Other changes concerning rest breaks
9. BFM hours - correction of error
10. BFM hours
11. Change to AFM hours penalties for periods of 7 days or more
12. Driver base
13. Driver must carry work diary
14. Definition of electronic work diary
15. Information that must be recorded in a work diary
16. Destroyed, lost, stolen or malfunctioning work diaries
17. Outsourcing of record keeping
18. Recording of information by record keeper
19. Tampering with electronic work diaries
20. Electronic work diaries
21. Insertion of section 74A
22. Insertion of sections 75A and 75B
23. Insertion of section 76A
24. Insertion of section 80A
25. BFM driver details to be supplied to the Authority
26. Operator must advise of change or end of accreditation
27. Offences concerning AFM accreditation documents
28. AFM driver details to be supplied to the Authority
29. Offence to falsely represent that accreditation etc. held
30. Enforcement powers
31. Duty on officers to annotate driver's work diary
32. Fatigue Authorities Panel
33. Definitions
Model Amendments Act: Heavy Vehicle Driver Fatigue -- Package No. 2
The following provisions are intended to provide the basis for nationally consistent transport laws on the topics with which they deal. They do not, of themselves, have any legal effect.
This Act is the Model Amendments Act: Heavy Vehicle Driver Fatigue -- Package No. 2 .
The purpose of this Act is to amend the Road Transport (Heavy Vehicle Driver Fatigue) Act 2006 -
(a) to make further provision in relation to the verification of the BFM and AFM accreditation status of drivers; and
(b) to supplement the provisions dealing with electronic work diaries; and
(c) to recognise the establishment of the Fatigue Authorities Panel by the Fatigue Authorities Panel Rules, rather than by that Act; and
(d) to otherwise improve the operation of that Act.
This Act was approved by the Australian Transport Council on 28 March 2008.
4. Act being amended by this Act
This Act amends the Road Transport (Heavy Vehicle Driver Fatigue) Act 2006 .
5. Change to the reasonable steps defence
For sections 24(a) and (b) substitute -
" (a) the person did not know, and could not reasonably be expected to have known, of the contravention concerned; and
(b) either:
(i) the person had taken all reasonable steps to prevent the contravention concerned; or
(ii) the person could not reasonably be expected to have taken any steps to prevent the contravention concerned. " .
For sections 33(3)(a) and (b) substitute -
" (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; " .
7. Change to how short rest breaks may be taken
(1) In section 44(6), in the table -
(a) in the item relating to a total period (column 1) of 5½ hours, in column 3 omit " stationary " ;
(b) in the item relating to a total period (column 1) of 8 hours, in column 3 omit " stationary " ;
(c) in the item relating to a total period (column 1) of 11 hours, in column 3 omit " stationary " .
(2) In section 45(6), in the table -
(a) in the item relating to a total period (column 1) of 5½ hours, in column 3 omit " stationary " ;
(b) in the item relating to a total period (column 1) of 8 hours, in column 3 omit " stationary " ;
(c) in the item relating to a total period (column 1) of 11 hours, in column 3 omit " stationary " .
(3) In section 49(6), in the table -
(a) in the item relating to a total period (column 1) of 6¼ hours, in column 3 omit " stationary " ;
(b) in the item relating to a total period (column 1) of 9 hours, in column 3 omit " stationary " ;
(c) in the item relating to a total period (column 1) of 12 hours, in column 3 omit " stationary " .
8. Other changes concerning rest breaks
(1) In section 46(6), in the table, in the item relating to a total period (column 1) of 24 hours, in column 3 omit " or is stationary " .
(2) In section 46(6), in the table, in the item relating to the total period (column 1) of 7 days, in column 4 -
(a) for " ≤ 58½ hrs work time " substitute " > 60 hrs but not > 61½ hrs work time " ;
(b) for " > 58½ hrs but not > 57½ hrs work time " substitute " > 61½ hrs but not > 62½ hrs work time " ;
(c) for " > 57½ hrs but not > 57 hrs work time " substitute " > 62½ hrs but not > 63 hrs work time " ;
(d) for " > 57 hrs work time " substitute " > 63 hrs work time " .
(3) In section 46(6), in the table, in the item relating to the total period (column 1) of 14 days, in column 4 -
(a) for " ≤ 118½ hrs work time " substitute " > 120 hrs but not > 121½ hrs work time " ;
(b) for " > 118½ hrs but not > 117½ hrs work time " substitute " > 121½ hrs but not > 122½ hrs work time " ;
(c) for " > 117½ hrs but not > 117 hrs work time " substitute " > 122½ hrs but not > 123 hrs work time " ;
(d) for " > 117 hrs work time " substitute " > 123 hrs work time " .
9. BFM hours - correction of error
In section 51(6), in the table, in the item relating to the total period (column 1) of 7 days, in column 4 -
(a) for " ≤ 68½ hrs work time " substitute " > 70 hrs but not > 71½ hrs work time " ;
(b) for " > 68½ hrs but not > 67½ hrs work time " substitute " > 71½ hrs but not > 72½ hrs work time " ;
(c) for " > 67½ hrs but not > 67 hrs work time " substitute " > 72½ hrs but not > 73 hrs work time " ;
(d) for " > 67 hrs work time " substitute " > 73 hrs work time " .
(1) In section 51(5), after " subsection " insert " (2) or " .
(2) In section 51(6), in the table, in the item relating to the total period (column 1) of 24 hours, in column 3 omit -
(a) " 10 hrs stationary rest time, or " ; and
(b) " 10 hrs rest time in an approved sleeper berth while the vehicle is moving or is stationary " .
11. Change to AFM hours penalties for periods of 7 days or more
(1) In sections 52(2) and (3), in the penalty, for " column 3 " substitute " column 4 " .
(2) In section 52(5), after " subsection " insert " (2) or " .
(3) In section 52(6), for the table substitute -
" AFM hours -- Penalties
Column 1 Total period | Column 2 Maximum work | Column 3 Minimum rest time | Column 4 Offence category |
In any period of ... | If a driver has exceeded the maximum work time by ... | If a driver has had less than the minimum rest time by ... | ... the following category of offence is committed ... |
Less than 7 days | ï‚£ 45 mins work time | ï‚£ 45 mins rest time | minor risk |
| > 45 but ï‚£ 75 mins work time | > 45 but ï‚£ 75 mins rest time | substantial risk |
| > 75 but ï‚£ 90 mins work time | > 75 but ï‚£ 90 mins rest time | severe risk |
| > 90 mins work time | > 90 mins rest time | critical risk |
|
|
|
|
7 days or more |  1½ hours work time |
| minor risk |
| > 1½ but  2½ hours work time |
| substantial risk |
| > 2½ but  3 hours work time |
| severe risk |
| > 3 hours work time |
| critical risk |
".
(3) In sections 52A(2) and (3), in the penalty, for " column 3 " substitute " column 4 " .
(4) In section 52A(6), for the table substitute -
" AFM outer limits -- Penalties
Column 1 Total period | Column 2 Maximum work | Column 3 Minimum rest time | Column 4 Offence category |
In any period of ... | If a driver has exceeded the maximum work time by ... | If a driver has had less than the minimum rest time by ... | ... the following category of offence is committed ... |
Less than 7 days | ï‚£ 15 mins work time | ï‚£ 15 mins rest time | substantial risk |
| > 15 mins but ï‚£ 30 mins work time | > 15 but ï‚£ 30 mins rest time | severe risk |
| > 30 mins work time | > 30 mins rest time | critical risk |
7 days or more | ï‚£ 30 mins work time |
| substantial risk |
| > 30 mins but ï‚£ 1 hour work time |
| severe risk |
| > 1 hour work time |
| critical risk |
".
(1) For section 55(1) substitute -
" (1) The base of a driver of a regulated heavy vehicle, in relation to particular work, is the place from which he or she normally does the work.
(1A) Despite subsection ( 1), if a driver has not recorded a base in his or her work diary in relation to particular work, for the purpos es of this Act the driver' s base in relation to that work is the garage address of the vehicle. " .
(2) For section 57(3)(f) substitute -
" (f) details of his or her base, unless he or she has previously recorded those details in relation to the work and they are still current; and " .
13. Driver must carry work diary
In section 56(2), in note 1, after " record. " insert " Section 59 does not apply if a driver forgets to take a work diary on a journey - in that circumstance the driver is liable to be prosecuted under this subsection. " .
14. Definition of electronic work diary
(1) For section 56(5) substitute -
" (5) An electronic work diary is any system of recording information electronically:
(a) that has attached to each device that forms part of the system a label:
(i) that indicates that the device is, or is part of, an electronic work diary that is the subject of a current approval of the Authority under section 74; and
(ii) that states the number of the certificate of approval issued by the Authority in respect of the approval; and
(iii) that is in a form approved by the Authority; and
(b) that is the subject of a current approval of the Authority under section 74.
(5A) For the purposes of this Act, a person is entitled to rely on a label that appears to comply with subsection ( 5)(a) unless he, she or it knows, or reasonably ought to know, that the thing is not the subject of a current approval of the Authority under section 74. " .
15. Information that must be recorded in a work diary
For sections 57(4)(f)(iii) and (iv) substitute -
" (iii) except in the case of a shared electronic work diary, the security or other identifying number of the other driver ' s work diary and the name of the participating jurisdiction that issued that diary. " .
16. Destroyed, lost, stolen or malfunctioning work diaries
(1) In section 59(3) -
(a) after " has been " insert " filled up, " ;
(b) after " written notice " insert " , in a form approved by the Authority, " .
(2) After section 59(4) insert -
" (4A) If a driver gives a work diary to the Authority under subsection ( 4), the Authority must:
(a) cancel any unused daily sheets in the diary; and
(b) return the diary to the driver. " .
17. Outsourcing of record keeping
(1) After section 62(2) insert -
" (2A) Despite subsection ( 2), a record keeper may engage the services of another person to carry out some or all of the record keeper ' s functions as a record keeper under this Act.
(2B) If such an engagement occurs:
(a) the record keeper remains liable for all obligations imposed on the record keeper under this Act; and
(b) the other person is also liable under this Act, in respect of any obligation imposed on the record keeper as a record keeper that is covered by the terms of the engagement, as if he, she or it was the record keeper. " .
18. Recording of information by record keeper
(1) In section 62(3)(a), after " record " insert " the following information as soon as possible after receiving it " .
(2) After section 62(8) insert -
" (8A) Subsection ( 8) does not apply with respect to any entries that are transferred from an electronic work diary to the record keeper within the 21 day period referred to in that subsection. " .
(3) After section 62(9) insert -
" (9A) If a driver uses an electronic work diary, the record keeper must ensure that the information recorded in the diary on a specific day is transferred, or otherwise given, to the record keeper within 21 days after that specific day.
Court - imposed penalty: $6 000. " .
19. Tampering with electronic work diaries
(1) In section 71(4) -
(a) in paragraph ( d), for " diary. " substitute " diary; or " ;
(b) after paragraph ( d) insert -
" (e) results in inaccurate data being recorded by the diary; or
(f) may result in inaccurate data being recorded by the diary. " .
(2) After section 71(4) insert -
" (4A) A person also tampers with an electronic work diary if the person tampers or otherwise interferes with any electronic signal that is sent to, or from, the diary, and that conduct has any of the effects listed in subsection ( 4). " .
(3) After section 71(7) insert -
" (8) If a person is charged with an offence against subsection ( 1) and the alleged offence involves tampering or otherwise interfering with any electronic signal that is sent to, or from, an electronic work diary, it is a defence to the charge if the person proves that he or she was not aware, and could not reasonably be expected to have been aware, that the activity that constituted the alleged tampering or interfering would interfere with the electronic signal.
(9) Subsection ( 8) does not apply to a driver who was using the electronic work diary or to the driver ' s record keeper. " .
(1) For section 74(3) substitute -
" (3) The Authority may approve a system of recording information electronically for use as an electronic work diary for the purposes of this Act if it is satisfied that the system:
(a) is suitable for fitting to, or for use in, a regulated heavy vehicle; and
(b) has a mechanism that readily indicates to the driver of the vehicle that the system is, or is not, properly functioning; and
(c) is capable of accurately monitoring and recording the work and rest times of the driver of the vehicle, and of recording any other information that a driver is required, under this Act, to record in a work diary; and
(d) if the system is to be fitted to the vehicle and is to be used by more than one driver, is capable of ensuring:
(i) that all of the information referred to in paragraph ( c) can be accurately monitored or recorded (as the case may be) for each driver; and
(ii) that the details recorded by, or in respect of a driver, are readily distinguishable from the details recorded by, or in respect, of any other driver; and
(iii) that the name of each driver in respect of which details are recorded is shown whenever the details are accessed; and
(iv) that a driver cannot record any information that a driver is required, under this Act, to record in a work diary in the system for, or on behalf of, another driver; and
(e) has a mechanism to ensure that the driver cannot alter any information that the driver records in the system once the driver has had an opportunity to confirm the accuracy of that information; and
(f) if the system is designed to enable the driver to send information to the driver ' s record keeper, has a mechanism that readily indicates to the driver that the information has, or has not, been sent to the record keeper; and
(g) is capable of readily reproducing, on being accessed by the record keeper, the information it contains; and
(h) is capable of readily reproducing, on being accessed by an authorised officer or a police officer while the vehicle to which it is fitted is on the road, the information it contains in a form:
(i) that is readily accessible by the officer; and
(ii) that is reasonably capable of being understood by the officer; and
(iii) that can be used as evidence.
Note : An electronic work diary may include or form part of an approved intelligent transport system under the IAP Act. Intelligent transport system is defined in the C & E Act. " .
(2) After section 74(4) insert -
" (4A) If the Authority grants an application under this section, it must issue a numbered certificate of approval to the applicant.
(4B) In granting an application, the Authority may impose conditions in relation to the operation and maintenance of the diary.
(4C) An approval under this section covers any system that is identical to the system that was submitted to the Authority for approval.
(4D) Any identical system that is covered by an approval is also subject to any conditions that were imposed in relation to the approval.
(4E) A document that purports to be a certificate of approval issued by the Authority under this section is evidence that any system referred to in the document has been approved by the Authority as an electronic work diary under this section. " .
After section 74 insert -
" 74A. Labelling of electronic work diary devices
(1) In this section, approved electronic work diary means a system of recording information electronically that is the subject of a current approval of the Authority under section 74 for use as an electronic work diary for the purposes of this Act, or that is identical to such a system.
(2) A person may place on any device that is, or that forms part of, an approved electronic work diary a label that indicates that the device is, or is part of, an approved electronic work diary.
Note : Under section 56(5), placing a label of the sort described in this subsection on a thing makes the thing an electronic work diary for the purposes of this Act, provided the label states the number of the certificate of approval that applies to the thing, and provided the thing is the subject of a current approval under section 74 and is in a form that has been approved by the Authority.
(3) A person must not place on any device a label that indicates that the device is, or is part of, an approved electronic work diary if the device is not, or does not form part of, an approved electronic work diary.
Court - imposed penalty: $6 000.
(4) A person must not use as an electronic work diary for the purposes of this Act any device that has a label that indicates that the device is, or is part of, an approved electronic work diary if the person knows, or reasonably ought to know, that the device is not, or does not form part of, an approved electronic work diary.
Court - imposed penalty: $6 000.
(5) The existence of a label on a thing that indicates that the thing is, or forms part of, an approved electronic work diary, and that purports to show the number of a certificate of approval, is evidence that the thing is an approved electronic work diary.
(6) An offence against subsection ( 3) or (4) is an offence of strict liability. " .
22. Insertion of sections 75A and 75B
After section 75 insert -
" 75A Removal of electronic work diary approval label
(1) This section applies if the Authority cancels the approval of an electronic work diary.
(2) The person who, immediately before the cancellation took effect, held the approval -
(a) must remove from any diaries in his, her or its possession any label that relates to the former approval; and
(b) must notify in writing each person to whom he, she or it has supplied any diary under the approval that the approval has been cancelled and that any label on any such diary still in the person ' s possession should be removed.
Court - imposed penalty: $6 000.
(3) Any person who is aware that the approval of a diary in the person ' s possession has been cancelled must remove from the diary any label that relates to the former approval.
Court - imposed penalty: $6 000.
75B Authority may permit the use of diaries whose approval has been cancelled
(1) The Authority may, by notice published in the Gazette, permit the use of diaries whose approval has been cancelled:
(a) for a specified period or indefinitely; and
(b) on specified conditions.
(2) Despite anything to the contrary in this Act, a diary that is the subject of a notice under this section is to be treated as if it were an electronic work diary, unless it is being used contrary to any condition specified in the notice.
(3) The Authority may, by notice published in the Gazette, vary or revoke a notice under this section. " .
After section 76 insert -
" 76A. How electronic work diary to be operated
(1) A driver using an electronic work diary must ensure that he or she operates and maintains the diary:
(a) in accordance with the manufacturer's specifications; and
(b) in compliance with any conditions imposed by the Authority that apply to the operation of the diary. " .
Court - imposed penalty: $6 000.
(2) The record keeper of a driver using an electronic work diary must ensure that the driver complies with the requirements of subsection ( 1).
Court - imposed penalty: $6 000.
(3) It is a defence to a charge of failing to comply with a particular specification of the manufacturer for the person charged to prove either:
(a) that the specification was not integral to the effective operation of the diary; or
(b) that what was done or not done with respect to the specification was in accordance with industry practice in relation to the handling or maintenance of a diary of that type from that manufacturer.
(4) An offence against subsection ( 1) or (2) is an offence of strict liability.
76B. Admissibility of documents produced by an electronic work diary
(1) A document produced by an electronic work diary is evidence of the matters contained in the document.
(2) A statement as to the operation of an electronic work diary made in a document purporting to be signed by a person purporting to be involved with the operation of the diary is evidence of any fact contained in the statement. " .
After section 80 insert -
" 80A. Driver must carry BFM accreditation documents
(1) At all times while working under an operator's BFM accreditation, a driver must have in his or her possession:
(a) a copy of the operator ' s accreditation certificate; and
(b) a document signed by the operator stating that the driver is working under the operator ' s accreditation, has been inducted into the operator ' s BFM fatigue management system and meets the requirements relating to drivers under the accreditation.
Note 1: A driver is already required to record his or her operator's BFM accreditation number under section 57 (3)(e).
Note 2: An authorised officer or police officer may direct a driver to produce a record required to be kept by the driver -- see section 44 of the C & E Act.
Court - imposed penalty: $2 000.
Infringement notice penalty: $600.
(2) The operator must ensure that each of the drivers driving under the operator ' s BFM accreditation does not contravene subsection ( 1).
Court - imposed penalty: $2 000.
Infringement notice penalty: $600.
(3) A driver must immediately return to an operator any document given to him or her by the operator for the purposes of subsection ( 1) if the driver:
(a) ceases to work under an operator's BFM accreditation; or
(b) ceases to meet the requirements relating to drivers under that accreditation.
Court - imposed penalty: $2 000.
Infringement notice penalty: $600.
(4) An offence against subsection ( 1), (2) or (3) is an offence of strict liability. " .
25. BFM driver details to be supplied to the Authority
After section 81(3) insert -
" (3A) If required to do so by the Authority, the operator must give to the Authority, in the form and within the time specified by the Authority -
(a) a copy of the list of drivers kept by the operator under subsection ( 2)(b); and
(b) details of any changes to that list.
Court - imposed penalty: $2 000.
Infringement notice penalty: $600. " .
26. Operator must advise of change or end of accreditation
(1) After section 82(1) insert -
" (1A) If a driver is informed that an operator's BFM accreditation has changed or ceased, he or she must immediately return to the operator any document given to him or her by the operator for the purposes of section 80A(1).
Court - imposed penalty: $2 000.
Infringement notice penalty: $600. " .
(2) In section 82(2), after " (1) " insert " or (1A) " .
27. Offences concerning AFM accreditation documents
(1) For section 86(1) substitute -
" (1) At all times while working under an operator's AFM accreditation, a driver must have in his or her possession:
(a) a copy of the operator ' s accreditation certificate; and
(b) a document signed by the operator stating that the driver is working under the operator ' s accreditation, has been inducted into the operator ' s AFM fatigue management system and meets the requirements relating to drivers under the accreditation; and
(c) a document that sets out the AFM hours allowed under the accreditation.
Example: It would be sufficient compliance with the requirement in paragraph ( c) for a driver to have a record of the AFM hours allowed under the accreditation stored in his or her electronic work diary (as the diary is a document).
Note 1: A driver is already required to record his or her operator's AFM accreditation number under section 57 (3)(e).
Note 2: An authorised officer or police officer may direct a driver to produce a record required to be kept by the driver -- see section 44 of the C & E Act.
Court - imposed penalty: $2 000.
Infringement notice penalty: $ 600. " .
(2) After section 86(2) insert -
" (2A) A driver must immediately return to an operator any document given to him or her by the operator for the purposes of subsection ( 1)(a) or (b) if the driver:
(a) ceases to work under an operator's AFM accreditation; or
(b) ceases to meet the requirements relating to drivers under that accreditation.
Court - imposed penalty: $2 000.
Infringement notice penalty: $ 600. " .
(3) In section 86(3), for " and (2) " substitute " , (2) or (2A) " .
(4) After section 88(1) insert -
" (1A) If a driver is informed that an operator's AFM accreditation has changed or ceased, he or she must immediately return to the operator any document given to him or her by the operator for the purposes of section 86(1)(a) or (b).
Court - imposed penalty: $2 000.
Infringement notice penalty: $600. " .
(5) In section 88(2), after " (1) " insert " or (1A) " .
28. AFM driver details to be supplied to the Authority
After section 87(3) insert -
" (3A) If required to do so by the Authority, the operator must give to the Authority, in the form and within the time specified by the Authority -
(a) a copy of the list of drivers kept by the operator under subsection ( 2)(b); and
(b) details of any changes to that list.
Court - imposed penalty: $ 2 000.
Infringement notice penalty: $600. " .
29. Offence to falsely represent that accreditation etc. held
(1) After section 103(1) insert -
" (1A) A person must not represent that he or she is working under an accreditation or exemption if that accreditation or exemption is no longer in force.
Court - imposed penalty: $10 000. " .
(2) For section 103(2) substitute -
" (2) A person must not possess a document that falsely purports to be:
(a) an accreditation or exemption under this Act; or
(b) a copy of an accreditation or exemption under this Act; or
(c) a document of the sort required by section 80A(1)(b) or 86(1)(b).
Court - imposed penalty: $6 000. " .
(3) In section 103(3), for " subsections ( 1) or (2) " substitute " subsection ( 1), (1A) or (2) " .
(1) For section 107(1) substitute -
" (1) This section applies if an authorised officer or police officer reasonably believes:
(a) that a driver has committed an offence against section 28 (Driver's duty to avoid driver fatigue) or Part 3 (Duties relating to work and rest times); and
(b) either:
(i) that the driver is impaired by fatigue that may have 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) In section 107(2), for " time " (wherever occurring) substitute " break " .
31. Duty on officers to annotate driver ' s work diary
After section 109(4) substitute -
" (4A) 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. " .
Omit section 114.
In the Dictionary -
(a) in the definition of base , for " 55(1) " substitute " 55 " ;
(b) in the definition of electronic work diary , for " 55(5) " substitute " 56(5) " ;
(c) for the definition of Fatigue Authorities Panel substitute -
""Fatigue Authorities Panel" means the Panel established by the Fatigue Authorities Panel Rules made by the National Transport Commission, and approved by the ATC on xx xxx 2008 ï›ï€ªï , as amended from time to time. " .