Commonwealth Consolidated Regulations

NATIONAL TRANSPORT COMMISSION (MODEL AMENDMENTS ACT: HEAVY VEHICLE DRIVER FATIGUE--PACKAGE NO. 4) REGULATIONS 2009 - SCHEDULE 1

(regulation   3)

Model Amendments Act: Heavy Vehicle Driver Fatigue--Package No.   4

Contents

Page

1.   Name

2.   Purpose

3.   Approval

4.   Act being amended by this Act

5.   What is work/rest hours option

6.   Minor amendment

7.   What is a driver' s base and record location

8.   Driver must carry work diary

9.   Information that driver must record in work diary

10.   Destroyed, lost, stolen or malfunctioning work diaries

11.   Information that record keeper must record

12.   Minor amendment

13.   Issue of written work diaries

14.   Approval of electronic work diaries

15.   Insertion of new section   76A

16.   Consequential amendments

17.   Driver must carry AFM accreditation details

18.   Minor amendment

19.   Work/rest hours exemption

20.   Insertion of sections   94A and 94B

21.   Insertion of Division   6.1A

22.   Penalties

23.   Decisions that may be reconsidered and reviewed

24.   Substitution of section   132

25.   Amendment to definition

Model Amendments Act: Heavy Vehicle Driver Fatigue--Package No.   4

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.

1.   Name

    This Act is the Model Amendments Act: Heavy Vehicle Driver Fatigue -- Package   No.   4 .

2.   Purpose

    The purpose of this Act is to make various minor amendments to improve the operation of the Road Transport (Heavy Vehicle Driver Fatigue) Act 2006 .

3.   Approval

    This Act was approved by the Transport Agency Chief Executives on 25   August   2008.

4.   Act being amended by this Act

    This Act amends the Road Transport (Heavy Vehicle Driver Fatigue) Act 2006 .

5.   What is work/rest hours option

    In section   36 -

  (a)   for paragraph   ( d) substitute -

  " (d)   the hours specified in a work/rest hours exemption (whether or not granted in combination with an operator's BFM or AFM accreditation). " ;

  (b)   for the note substitute -

" Note :   Section   43 explains what standard hours are. Section   48 explains what BFM hours are. Section   52 explains what AFM hours are. Section   91 explains what a work/rest hours exemption is and provides that a work/rest hours exemption may be granted in combination with an operator's BFM or AFM accreditation. " .

6.   Minor amendment

    In section   52A(5), after " subsection " insert " (2) or " .

7.   What is a driver' s base and record location

    For section   55(2)(b) substitute -

  " (b)   if the vehicle is normally kept on a particular road or at a particular place when not in use - the home address of the registered operator whose home address is nearest to that road or place; or

  (c)   in any other case - the home address of the registered operator whose name is first listed on the registration certificate for the vehicle. " .

8.   Driver must carry work diary

    For section   56(1) substitute -

  " (1)   This section applies if a driver:

  (a)   is engaged in 100+ km work; or

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

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

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

  (e)   is driving under a work/rest hours exemption (whether or not granted in combination with an operator's BFM or AFM accreditation); or

  (f)   was driving under a work/rest hours exemption (whether or not granted in combination with an operator's BFM or AFM accreditation) in the last 28 days.

Note :   Section   91 provides that a work/rest hours exemption may be granted in combination with an operator's BFM or AFM accreditation. " .

9.   Information that driver must record in work diary

  (1)   In section   57(3) -

  (a)   in paragraph   ( d), for " or AFM hours " substitute ",   AFM hours or the hours specified in a work/rest hours exemption";

  (b)   for paragraph   ( e) substitute -

  " (e)   if he or she is working under BFM or AFM hours or the hours specified in a work/rest hours exemption that was granted in combination with an operator's BFM or AFM accreditation - his or her operator's BFM or AFM accreditation number; and " .

  (2)   After section   57(4) insert -

  " (4A)   If the driver changes from one base or record location to another base or record location after starting work on one of those days, he or she must record the details of the other base or record location (as the case may be) immediately after the change occurs.

Court - imposed penalty: $2   000.

Infringement notice penalty: $600. " .

10.   Destroyed, lost, stolen or malfunctioning work diaries

  (1)   For sections   59(1) and (1A) substitute -

  " (1)   This section applies if a driver is unable to use a work diary because:

  (a)   it is filled up, destroyed, lost or stolen; or

  (b)   in the case of an electronic work diary:

  (i)   it is malfunctioning; or

  (ii)   a component of it is destroyed, lost or stolen.

  (1A)   During any period in which subsection   ( 1) applies, the driver must record in a supplementary record any information that he or she is required by section   57 to record.

Court - imposed penalty: $4   000.

Infringement notice penalty: $800. " .

  (2)   For section   59(1B)(a) substitute -

  " (a)   the driver is given a replacement work diary; or

  (aa)   in the case of an electronic work diary that is malfunctioning - the diary is brought into working order; or

  (ab)   in the case of an electronic work diary for which a component has been destroyed, lost or stolen - the driver is given a replacement component and the diary is brought into working order; or " .

  (3)   For section   59(3) substitute -

  " (3)   As soon as practicable (but within 2 business days) after the driver becomes aware that subsection   ( 1) applies, the driver must give the Authority written notice, in a form approved by the Authority, of the relevant event that caused that subsection to apply.

Court - imposed penalty: $4   000.

Infringement notice penalty: $800. " .

  (4)   For section   59(8) substitute -

  " (8)   An offence against subsection   ( 1A), (3), (4), (5), (6) or (7) is an offence of absolute liability. " .

11.   Information that record keeper must record

  (1)   For section   62(2) substitute -

  " (2)   A record keeper is:

  (a)   if an employed driver is working under standard hours or under a work/rest hours exemption that was not granted in combination with an operator's BFM or AFM accreditation - the employer; or

  (b)   if a self - employed driver is working under standard hours or under a work/rest hours exemption that was not granted in combination with an operator's BFM or AFM accreditation - the self - employed driver; or

  (c)   if an employed or self - employed driver is working under an operator's BFM or AFM accreditation or a work/rest hours exemption that was granted in combination with an operator's BFM or AFM accreditation - the operator.

Note :   Section   91 provides that a work/rest hours exemption may be granted in combination with an operator's BFM or AFM accreditation. " .

  (2)   In section   62(3A), after " AFM accreditation " insert " or under a work/rest hours exemption (whether or not granted in combination with an operator's BFM or AFM accreditation) " .

  (3)   In section   62(8A), before " transferred " insert " electronically " .

  (4)   After section   62(9) insert -

  " (9A)   If a driver uses an electronic work diary, the record keeper must ensure:

  (a)   that the information recorded in the diary on a specific day is electronically transferred to the record keeper within 21 days after that day; or

  (b)   that the driver complies with subsection   ( 8).

Court - imposed penalty: $2   000.

Infringement notice penalty: $600. " .

12.   Minor amendment

    In section   71(7), after " subsection   ( 2) " insert " or (3) " .

13.   Issue of written work diaries

    In section   73(5), for " replace a work diary " substitute " replace an existing written work diary " .

14.   Approval of electronic work diaries

  (1)   After section   74(5) insert -

  " (6)   If the Authority does not make the decision sought by an applicant, the Authority must also give the applicant a written notice that states:

  (a)   the Authority's decision; and

  (b)   the reasons for the decision; and

  (c)   that the applicant may apply to have the decision reconsidered. " .

  (2)   For section   75A(2) substitute -

  " (2)   The person who, immediately before the cancellation took effect, held the approval must remove from any diaries in his, her or its possession any label that relates to the former approval.

Court - imposed penalty: $6   000.

  (2A)   The Authority may direct the person who, immediately before the cancellation took effect, held the approval to 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.

  (2B)   If the Authority gives a direction to a person under subsection   ( 2A), the person must comply with the direction.

Court - imposed penalty: $6   000.

  (2C)   With the consent of the Authority, a person may comply with subsection   ( 2A) by publishing details of the cancellation, and any further details specified by the Authority, using at least 2 of the following methods:

  (a)   by notice published in a newspaper specified by the Authority;

  (b)   by notice published in a journal or newsletter specified by the Authority;

  (c)   on a website specified by the Authority.

  (2D)   Nothing in this section prevents the Authority from publishing details of the cancellation by whatever means it thinks appropriate.

Example :   The Authority may publish the cancellation by gazettal or on a website.

  (3)   After section   75A(3) insert -

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

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

Note :   Section   24 explains the reasonable steps defence . " .

  (4)   For section   75B(1)(a) substitute -

  " (a)   for a specified period not exceeding 1 year; " .

15.   Insertion of new section   76A

    After section   76 insert -

" 76A   Notice of variation of approval

  (1)   This section applies if:

  (a)   the Authority varies the approval of an electronic work diary; and

  (b)   in the Authority's opinion, the variation will, or is likely to, significantly affect the way the diary is to be used.

  (2)   The Authority may direct the person who, immediately before the variation took effect, held the approval to notify in writing each person to whom he, she or it has supplied any diary under the approval that the approval has been varied.

  (3)   If the Authority gives a direction to a person under subsection   ( 2), the person must comply with the direction.

Court - imposed penalty: $6   000

  (4)   With the consent of the Authority, a person may comply with subsection   ( 3) by publishing details of the variation, and any further details specified by the Authority, using at least 2 of the following methods:

  (a)   by notice published in a newspaper specified by the Authority;

  (b)   by notice published in a journal or newsletter specified by the Authority;

  (c)   on a website specified by the Authority.

  (5)   Nothing in this section prevents the Authority from publishing details of the cancellation by whatever means it thinks appropriate.

Example :   The Authority may publish the cancellation by gazettal or on a website.

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

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

Note :   Section   24 explains the reasonable steps defence . " .

16.   Consequential amendments

  (1)   In section   76A -

  (a)   for " 76A " substitute " 76B " ;

  (b)   for subsection   ( 1)(a) substitute -

  " (a)   in accordance with the manufacturer's specifications, as varied by any conditions imposed by the Authority; and " .

  (2)   In section   76B -

  (a)   for " 76B " substitute " 76C " ;

  (b)   after subsection   ( 2) insert -

" Examples

• A statement by a driver describing how the driver operated the electronic work diary
• A statement by the owner of an electronic work diary describing how the electronic work diary has been maintained
• A statement by the record keeper that certain data was transmitted to the record keeper by the electronic work diary " .

17.   Driver must carry AFM accreditation details

    For the penalty at the end of section   86(2) substitute -

" Court - imposed penalty: $2   000.

Infringement notice penalty: $600. " .

18.   Minor amendment

    In section   87(4), for " (1) or (2) " substitute " (1), (2) or (3) " .

19.   Work/rest hours exemption

  (1)   For sections   91(2) and (3) substitute -

  " (2)   The Authority may grant a work/rest hours exemption to:

  (a)   an employer, prime contractor, operator or self - employed driver who applies for the exemption; or

  (b)   a class of person, without the need for anyone to apply for the exemption.

  (3)   An employer, prime contractor, operator or self - employed driver who wants a work/rest hours exemption must apply to the Authority in accordance with section   93. " .

  (2)   In section   91(5) -

  (a)   for paragraph   ( d) substitute -

  " (d)   if the proposed work and rest times could be accommodated within BFM or AFM hours - BFM or AFM accreditation would be unreasonable for the proposed operation in safely managing fatigue risks. " ;

  (b)   omit the note at the end of the section (but not the drafting note).

  (3)   After section   91(5) insert -

  " (6)   The Authority may grant a work/rest hours exemption in combination with an operator's BFM or AFM accreditation.

  (7)   If the Authority grants a work/rest hours exemption in combination with an operator's BFM or AFM accreditation, it is a condition of the exemption that a driver must not work under the exemption unless the driver and the operator comply with all the requirements imposed on them under that accreditation.

  (8)   In any period specified in a work/rest hours exemption, a driver to whom the exemption applies:

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

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

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

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

  (9)   A party in the chain of responsibility for the regulated heavy vehicle must ensure the driver does not contravene subsection   ( 8).

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

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

  (10)   An offence against subsection   ( 8) or (9) is an offence of absolute liability.

  (11)   However, a party charged with an offence against subsection   ( 8) or (9) has the benefit of the reasonable steps defence.

Note :   Section   24 explains the reasonable steps defence .

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

Work/rest hours exemption -- Penalties

  ".

20.   Insertion of sections   94A and 94B

    After section   94 insert -

" 94A   Driver must carry exemption

  (1)   At all times while working under an exemption, a driver must have in his or her possession a copy of the exemption.

Note :   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 employer of an employed driver, the prime contractor of a self - employed driver and the operator of a regulated heavy vehicle that is being, or is to be, driven by a driver must ensure the driver does not contravene subsection   ( 1).

Court - imposed penalty: $2   000.

Infringement notice penalty: $600.

  (3)   If the exemption has been granted to an employer, an employed driver working under the exemption must return the copy of the exemption to the employer if the driver:

  (a)   ceases to work for the employer or under the exemption; or

  (b)   ceases to meet the requirements relating to drivers under the exemption.

Court - imposed penalty: $2   000.

Infringement notice penalty: $600.

  (4)   If the exemption has been granted to a prime contractor, a self - employed driver working under the exemption must return the copy of the exemption to the prime contractor if the driver:

  (a)   ceases to work for the prime contractor or under the exemption; or

  (b)   ceases to meet the requirements relating to drivers under the exemption.

Court - imposed penalty: $2   000.

Infringement notice penalty: $600.

  (5)   If the exemption has been granted to an operator, a driver working under the exemption must return the copy of the exemption to the operator if the driver:

  (a)   ceases to work under the exemption; or

  (b)   ceases to meet the requirements relating to drivers under the exemption.

Note :   Section   91 provides that a work/rest hours exemption may be granted in combination with BFM or AFM accreditation.

Court - imposed penalty: $2   000.

Infringement notice penalty: $600. " .

94B   Conditions of exemptions

  (1)   An exemption is subject to any conditions stated in the exemption or specified by the regulations.

  (2)   A person who is granted an exemption must not contravene a condition of the exemption.

Court - imposed penalty: $6   000.

  (3)   An offence against subsection   ( 2) is an offence of strict liability. " .

21.   Insertion of Division   6.1A

    After section   106 insert -

" Division   6.1A -- Extra - territorial offences

106A   Proceedings may be taken in respect of an offence regardless of where it occurs

    Proceedings may be taken against a person in respect of a possible offence under this Act or a corresponding fatigue law, and the person may be convicted of the offence, or be otherwise dealt with in relation to the offence under this Part, even if the offence was, or appears to have been, committed by the person while the person was not in [this jurisdiction]. " .

22.   Penalties

  (1)   In section   110(5), for the table substitute -

"

" .

  (2)   In section   110(6), for the table substitute -

"

".

23.   Decisions that may be reconsidered and reviewed

  (1)   In section   120, insert as the first items in the table -

"

".

  (2)   In section   120, in the table, in the item that was numbered -

  (a)   " 1 " before subsection   ( 1) took effect, for " 1 " substitute " 4 " ;

  (b)   " 2 " before subsection   ( 1) took effect, for " 2 " substitute " 5 " ;

  (c)   " 3 " before subsection   ( 1) took effect, for " 3 " substitute " 6 " ;

  (d)   " 4 " before subsection   ( 1) took effect, for " 4 " substitute " 7 " ;

  (e)   " 5 " before subsection   ( 1) took effect, for " 5 " substitute " 8 " ;

  (f)   " 6 " before subsection   ( 1) took effect, for " 6 " substitute " 9 " ;

  (g)   " 7 " before subsection   ( 1) took effect, for " 7 " substitute " 10 " ;

  (h)   " 8 " before subsection   ( 1) took effect, for " 8 " substitute " 11 " ;

  (i)   " 9 " before subsection   ( 1) took effect, for " 9 " substitute " 12 " ;

  (j)   " 10 " before subsection   ( 1) took effect, for " 10 " substitute " 13 " ;

  (k)   " 11 " before subsection   ( 1) took effect, for " 11 " substitute " 14 " .

24.   Substitution of section   132

    For section   132 substitute -

" 132   Existing logbooks

  (1)   A driver may continue to use a logbook issued under the old Regulations as if it was a work diary for the purposes of this Act:

  (a)   if the driver is working under standard hours - for 90 days after the commencement of this section or until the driver has obtained a work diary, whichever occurs first; or

  (b)   if the driver is working under BFM hours as permitted by section   124 - for 14 days after the commencement of this section or until the driver has obtained a work diary, whichever occurs first; or

  (c)   if the driver is working under BFM hours in any other circumstance or under AFM hours - for 14 days after the commencement of this section or until the driver has obtained a work diary, whichever occurs first.

  (2)   A driver who is using a logbook under subsection   ( 1) must comply with Part   4 of the old Regulations as if it continued to apply.

  (3)   If a driver is working under the hours specified in a Fatigue Management Scheme exemption under the old Regulations as permitted by section   124, the driver may continue to use a document specified in that exemption as if it was a work diary for the purposes of this Act for the period specified in section   124 or until the exemption is cancelled.

  (4)   For the purposes of this section:

  (a)   a reference in section   62 to a work diary is to be read as if it was a reference to the logbook; and

  (b)   if the driver is working under BFM hours as permitted by section   124 - the driver's employer is the record keeper for the purposes of section   62; and

  (c)   a reference in section   73 to an existing written work diary is to be read as if it was a reference to the logbook.

132A   Record keeping obligations continue

    An obligation on an employer or a self - employed driver to keep copies of a driver's driving records made under the old Regulations continues for 12   months after the commencement of this section as if regulation   61 or 62 of the old Regulations continued to apply. " .

25.   Amendment to definition

    In the Dictionary, in the definition of " malfunction " , in the list of examples of an electronic work diary malfunctioning, after the last example insert -

    " •   the data storage on the work diary becoming full " .