Model Amendments Act: Heavy Vehicle Driver Fatigue

 

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. 1 .

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 2007 .

3.              Approval

                This Act was approved by the Australian Transport Council on 16 November 2007.

4.              Act being amended by this Act

                This Act amends the Road Transport (Heavy Vehicle Driver Fatigue) Act 2007 .

5.              Substitution of sections 6 and 7

                For sections 6 and 7 substitute -

"6.            Examples

         (1)   Examples are part of this Act.

         (2)   An example of the operation of a provision of this Act -

                (a)    is not exhaustive; and

               (b)    may extend the meaning of the provision; and

                (c)    does not limit the meaning of the provision, unless the contrary intention appears.

7.              Notes

         (1)   Notes that are at the foot of a provision are part of this Act.

         (2)   Marginal notes, footnotes at the bottom of a page and endnotes are not part of this Act.

7A.           Gender

                If the context permits, in this Act a reference to "she or he", "he or she", "him or her" or "her or him" is to be read as including a reference to "it", and a reference to "her or his" or "his or hers" is to be read as including a reference to "its".

".

6.              Relationship with the C & E Act

                After section 8(4) insert -

"(5)       For the purposes of this section, a reference in the C & E Act to a responsible person is to be read as if it included a reference to each of the parties in the chain of responsibility.".

7.              Substitution of section 9

                For section 9 substitute -

"9.           Relationship of this Act to other laws

         (1)   Nothing in this Act abrogates:

                (a)    the < insert name of the jurisdiction's primary occupational health and safety legislation > or any regulations made under that Act;

               (b)    any other law or legal instrument that is specified by the regulations for the purposes of this sub‑section.

Examples of another law or legal instrument

*         another law relating to fatigue or work/rest hours

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

         (2)   Nothing in this Act abrogates a provision of any other law or legal instrument to the extent that the law or legal instrument is not inconsistent with this Act.

         (3)   Evidence of a relevant contravention of this Act or the regulations made under this Act is admissible in any proceedings for an offence against the < insert name of the jurisdiction's primary occupational health and safety legislation > or any regulations made under that Act.

         (4)   Compliance with this Act or the regulations made under this Act, or with any requirement imposed under this Act or those regulations, is not, in itself, evidence that a person has complied with the < insert name of the jurisdiction's primary occupational health and safety legislation > or any regulations made under that Act or with a common law duty of care.".

8.              Insertion of section 9A

                After section 9 insert -

"9A.        Crown to be bound

                This Act binds the Crown, not only in right of < this jurisdiction >, but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.".

9.              Substitution of definition

                For section 16 substitute -

" 16          Who is a scheduler

                A scheduler is:

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

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

10.            Minor amendment to clause 17 (Who is a consignor)

                In section 17 (d), before "unattended" insert "usually".

11.            Substitution of definition

                For section 19 substitute -

"19          Who is a loading manager

                A loading manager is:

                (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 are loaded with goods for transport, or 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

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.".

12.            Minor amendments to clause 21 (Who is an unloader)

         (1)   For sections 21 (a), (b) and (c) substitute -

              "(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 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".

         (2)   In the drafting note under section 21, for "exactlythe" substitute "exactly the".

13.            Insertion of Division 1.5

                After Division 1.4 insert -

"Division 1.5         Causation

25A.        Intention irrelevant in determining causation

                For the purposes of this Act, a person can cause something to happen even though she or he had no intention of causing that thing to happen.

25B.        Cause includes "contribute to causing" and "encourage"

                For the purposes of this Act, 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.

25C.        Objective reasonableness test to be used in determining causation

         (1)   In this section:

"duty holder" means a person on whom a duty is imposed by section 30, 31, 32 or 33 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 to avoid driving while impaired by fatigue or while in breach of his or her work/rest hours option.

Note 1    Section 27 explains what impaired by fatigue means.

Note 2    Section 35 explains what a work/rest hours option is.

         (2)   This section applies if an act of, or a failure to act by, a duty holder causes a fatigue offence to occur.

         (3)   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 Act there is created a rebuttable presumption that the duty holder caused the occurrence of the fatigue offence.".

14.            What are reasonable steps

                For sections 23 (1)-23 (3) substitute -

       "(1)   If a provision of this Act 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, she or he is to be regarded as having taken those steps if she or he:

                (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 she or he 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

                         (ii)    in any event, at least annually; and

                (c)    does the things identified under paragraph (a) (ii) as being things that she or he can reasonably do; and

               (d)    documents the actions that she or he has taken under paragraphs (a), (b) and (c), and retains that documentation for at least 3 years.

Note 1    Subsection (2) sets out a method of taking reasonable steps to prevent the occurrence of an offence for the purposes of the reasonable steps defence.

Example of a specified thing and a particular outcome

Among other things, section 31(2) 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

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

*         regular health and safety audits

*         regularly assessing driver fitness for duty

*         analysin g 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

*         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

Note 2    Section 185 of the C & E Act voids any term of a contract or agreement that purports to exclude, limit or modify the operation of that Act. This section also applies to this Act  -- see section 6 above.

         (2)   Without limiting the ways in which a person may take all reasonable steps to prevent the occurrence of an offence for the purposes of the reasonable steps defence, a person is to be regarded as having taken those steps if she or he:

                (a)    identifies and assesses -

                          (i)    the risks that the offence might occur; and

                         (iii)    if there is a substantial risk that the offence might occur, what she or he 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 might significantly increase the risk of the offence occurring; and

                         (ii)    in any event, at least annually; and

                (c)    does the things identified under paragraph (a) (ii) as being things that she or he can reasonably do; and

               (d)    documents the actions that she or he has taken under paragraphs (a), (b) and (c), and retains that documentation for at least 3 years.

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

                (a)    the nature of the 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 person's agent or employee, had or ought reasonably 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.".

15.            Minor amendment to clause 26 (What is fatigue)

                In section 26 (5), for "exposure of" substitute "exposure to".

16.            Amendments concerning duty on parties in the chain of responsibility to prevent driver fatigue

         (1)   For section 29 (3) substitute -

"(3)       For the purposes of sub‑section (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 sub‑section; 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 sub‑section.".

         (2)   In section 29 (4) omit "and, in the case of an operator, includes the requirements of a BFM or AFM accreditation".

                After the drafting note following section 29 (4) insert -

"(5)       In a prosecution under sub‑section (1), it is not necessary to prove that any particular person drove, or would or may have driven, the vehicle on a road while impaired by fatigue.".

17.            Change to wording of duty on employers, prime contractors and operators

         (1)   In section 30 (2), for "the schedule for the driver will not cause or permit" substitute "her or his business practices will not cause".

         (2)   After section 30 (2) insert -

"(2A)     In subsection (2), business practices means the practices of the employer, prime contractor or operator in running her or his 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.".

18.            Minor amendment concerning additional duties on certain parties in the chain of responsibility

                In sections 30 (2) (c), 31 (2) (c), 32 (2) (c) and 33 (2) (c), for "to avoid" substitute "in order to avoid".

19.            Standardisation of phrase concerning causation

         (1)   In sections 30 (3), 30 (4), 31 (2), 31 (3), 32 (3), 32 (4) and 35 (2), omit "or permit".

         (2)   In sections 34 and 35 (1), omit "or permitting".

20.            Additional duty on consignors and consignees

         (1)   After section 32 (4) insert -

"(4A)     The consignor and 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 to avoid driving while impaired by fatigue or while in breach of his or her work/rest hours option.

Penalty: the penalty for a severe risk offence.

Note 1    Section 23 explains what reasonable steps are.

Note 2    Section 26 explains what impaired by fatigue means.

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

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

(4B)      Subsection (4A) 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 31 ("Duties on schedulers").".

         (2)   In section 32 (5), for "or (4)" substitute ", (4) or (4A)".

21.            Duties on loading managers

         (1)   Omit section 33 (1).

         (2)   In section 33 (2), for "The loading manager must take all reasonable steps to ensure that the arrangements for loading and unloading the vehicles will not cause, or contribute to causing," substitute "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 she or he is the loading manager will not cause".

         (3)   For sections 33 (3) (a) and 33 (3) (b) substitute -

              "(a)    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

               (b)    is unable to advise the driver of when the loading or unloading of the vehicle is to finish;".

         (4)   In the last subsection in section 33, for "(2)  An" substitute "(4)  An".

22.            Clarification of meaning of "driving" in relation to work time

                After section 37 (2) insert -

"(3)       For paragraph (1) (a), driving includes:

                                  (a)      being in the driver's seat of a regulated heavy vehicle while its engine is running; and

                                  (b)      being in a regulated heavy vehicle for the purpose of instructing or supervising the driver of the vehicle.".

23.            Counting time, including work and rest time

                For section 40 (3) substitute -

"(3)       When counting time in a period, the time must not be counted from within rest time, but instead must be counted forward:

                                  (a)      if counting rest time and one or more major rest breaks are relevant to the period, from the end of a relevant major rest break; or

                                  (b)      in any other case, from the end of a relevant period of rest time.

Example

An authorised officer intercepts a driver on a Friday and inspects the driver's work diary.  The driver works standard hours.  The officer examines the diary entries for the previous Monday.  They show that the driver completed a 7 hour continuous rest break at 7 am on that day, started work at that time, worked until 12.15 pm, had a 1 hour rest break, then worked until 7.15 pm.  For the purposes of determining the number of hours worked by the driver on that Monday, the officer must start counting from the rest period that finished at 7 am.  Adding the periods 7 am to 12.15 pm and 1.15 pm to 7.15 pm results in a total of 11¾ hours worked that day (which is permissible under this Act in isolation).  The officer might also decide to calculate the number of continuous hours worked in the second work period that day - this requires that the counting start at the end of the rest period that finished at 1.15 pm, and results in a total of 6 continuous hours (which is not permissible under this Act under standard hours).".   

24.            Counting of time from outside the participating zone

                In section 42 (3), for "any work time outside the participating" substitute "work time only in the non‑participating".

25.            Defence relating to short rest breaks

                After the example in section 47 (1) insert -

" Note    If, at the time a driver is required to take a short rest break there is no suitable rest place, he or she may record that fact in his or her work diary.".

26.            Qualification of defence for solo drivers relating to split rest breaks

                In section 50 -

                (a)    omit "hat the driver took";

               (b)    for paragraphs (a) and (b) substitute -

                                "(a)      that he or she was, at the relevant time, driving under BFM hours as a solo driver of a regulated heavy vehicle"; and

                                  (b)      that he or she took a 6 hour continuous rest break and a 2 hour continuous rest break within the same 24 hour period (a split rest break ); and

                                  (c)      that he or she had not taken a split rest break in the previous 24 hour period.".

27.            AFM hours

                In section 52 (1), for Note 2 substitute -

" Note 2    Section 84 deals with the granting of AFM accreditation.  Among other things, it requires that for the Authority to approve particular AFM hours, it must be satisfied that they appear to provide a safe balance between work, rest, risk management and fatigue countermeasures.".

28.            Insertion of section 52A

"52A       AFM outer limits

         (1)   The following table sets out the AFM outer limits for a driver of a regulated heavy vehicle working under AFM hours .

AFM outer limits

Note    In addition to providing the absolute limits for drivers under AFM hours that are enforced under this section, these AFM outer limits are also relevant to the work and rest hour limits that the Authority may approve in granting AFM accreditation - see section 84 (5).

         (2)   In any period listed in column 1 of the table in subsection (1), the driver:

                (a)    must not work for more than the maximum work time specified in column 2 of the table in subsection (1) for that period; and

               (b)    must have at least the minimum rest time specified in column 3 of the table in subsection (1) for that period.

Penalty:   the penalty for the category of offence mentioned in column 3 of the table in subsection (6) .

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

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

Penalty:   the penalty for the category of offence mentioned in column 3 of the table in subsection (6) .

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

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

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

Note    Section 24 explains the reasonable steps defence .

         (6)   The following table sets out the categories of offence for the purposes of this section:

AFM outer limits -- Penalties

".

29.            Changes concerning work diaries

         (1)   In section 56 -

                (a)    in subsection (2), for "information for the last 28 days" substitute ", for the last 28 days, the information required by section 57";

               (b)    in subsection (2), for note 1 substitute -

" Note 1    If a driver's work diary is destroyed, lost, stolen or stops being operational, section 59(1A) requires the driver to record information in a supplementary record.";

                (c)    omit sub‑section (3) (b).

         (2)   After section 56 (3) insert -

"(3A)     If the driver has made any supplementary record in the last 28 days, as required by section 59 (1A), for the purposes of sub‑section (3) the work diary includes the supplementary record.".

         (3)   In section 57 (3) -

                (a)    in paragraph (f), omit "and the time zone of the base";

               (b)    after paragraph (g) insert -

                             "; and

                                  (h)      details of the time zone of the base.".

         (4)   After section 57 (5) insert -

"(5A)     A driver in a two‑up driving arrangement must, at the request of the other driver to the arrangement, provide the other driver with any details the other driver needs to be able to comply with subsection (4) (f).

Court‑imposed penalty:   $2 000.

Infringement notice penalty:   $600.".

30.            Destroyed, lost, stolen or malfunctioning work diaries

         (1)   For section 59 (1) substitute -

"(1)       This section applies if a driver's work diary has been filled up, destroyed, lost or stolen or, in the case of an electronic work diary, is malfunctioning.

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

(1B)      Sub‑section (1A) ceases to apply when the first of the following events occurs:

                                  (a)      the driver is issued a replacement work diary under section 73; or

                                  (b)      the expiry of 7 business days after the day on which the period in which the driver is unable to use the work diary started.".

         (2)   In section 59 (2) -

                (a)    before "work diary" (wherever occurring) insert "written or electronic";

               (b)    at the end of the sub‑section insert -

" Note    As a supplementary record becomes part of a work diary once it is made (see section 56 (3A)), it must be kept by the driver of a regulated heavy vehicle in the vehicle for 28 days after it is made (see section 56 (2)), and it must be kept by the record keeper for 3 years after it is made (see section 62 (5)).".

         (3)   In section 59 (3) after "that happening" insert "or must apply for a replacement work diary under section 73".

         (4)   For section 59 (4) (b) substitute -

              "(b)    if the old work diary was found or returned:

                          (i)    within 28 days after it was lost or stolen, immediately notify the Authority in writing that it has been found or returned, and must give it to the Authority as soon as is practicable after that 28 day period ends; or

                         (ii)    in any other circumstances, give it to the Authority as soon as is practicable after obtaining it.".

         (5)   After section 59 (5) insert -

"(5A)     If the Authority receives an application to replace the work diary of a driver from another jurisdiction in the participating zone, it must notify the corresponding Authority of that jurisdiction that it has received the application.".

31.            Change to the way certain matters are to be determined

         (1)   In sections 60 (2), 72 (1), 73 (2), 74 (2), 78 (2) (c), 79 (5), 83 (2) (d), 84 (6) and 104 (1) for "prescribed by the regulations" substitute "specified by the Fatigue Authorities Panel".

         (2)   In the Dictionary, in the definitions of AFM standards and business rules and BFM standards and business rules , for "prescribed in the regulations" substitute "specified by the Fatigue Authorities Panel".

         (3)   In the Dictionary, in the definition of approved sleeper berth , in paragraph (b), for "prescribed in the regulations" substitute "specified by the Fatigue Authorities Panel".

         (4)   In the Dictionary, after the definition of prescribed bus accreditation insert -

"

".

32.            Destroyed, lost, stolen or malfunctioning work diaries

                In sections 61 (1) and 62 (5) -

                (a)    for "$2 000" substitute "$6 000";

               (b)    omit "Infringement notice penalty:   $600".

33.            Information that record keeper must record

         (1)   For section 62 (3) substitute -

"(3)       If the driver is engaging in 100 km work under standard hours, the record keeper:

                                  (a)      must record:

                                             (i)        the driver's name, driver licence number and contact details; and

                                            (ii)        the dates on which the driver drives a regulated heavy vehicle on a road; and

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

                                           (iv)        the total of the driver's work and rest times on each day when the driver drives a regulated heavy vehicle; and

                                            (v)        the total of the driver's work and rest times for each week when the driver drives a regulated heavy vehicle; and

                                           (vi)        the driver's rosters and trip schedules, including details of driver changeovers; and

                                  (b)      must keep a copy of payment records relating to the driver, including timesheet records if the driver is paid according to time at work.

Court‑imposed penalty:   $2 000.

Infringement notice penalty:   $600.

(3A)      If the driver is engaging in 100+ km work, or is working under a BFM or AFM accreditation, the record keeper:

                                  (a)      must record:

                                             (i)        the driver's name, driver licence number and contact details; and

                                            (ii)        the driver's rosters and trip schedules, including details of driver changeovers; and

                                  (b)      must keep a copy of all duplicate pages and other copies of work diary entries given to him or her under subsection (8); and

                                  (c)      must keep a copy of payment records relating to the driver, including timesheet records if the driver is paid according to time at work.

Court‑imposed penalty: $2 000.

Infringement notice penalty: $600.".

(2)     For section 62 (8) substitute -

"(8)       Within 21 days after a day on which the driver drove a regulated heavy vehicle, he or she must give a copy of his or her work diary entries (including any entries made in any supplementary record) for that day to each person who was a record keeper for him or her on that day.

Court‑imposed penalty:   $2 000.

Infringement notice penalty:   $600.".

34.            Two‑up driver may make some entries in fellow driver's work record

         (1)   For section 69 (2) (c) substitute -

              "(c)    a two‑up driver who enters any of the information required by section 57 (4) (f) in her or his fellow two‑up driver's work record, or who signs that work record.".

35.            Issue of written work diaries

                For section 73 (9) substitute -

"(9)       If the Authority issues a written work diary to a driver from another jurisdiction in the participating zone:

                                  (a)      it must notify the corresponding Authority of that jurisdiction of:

                                             (i)        the identifying number for the work diary;

                                            (ii)        the driver's name and licence number; and

                                           (iii)        the time, date and place of issue; and

                                  (b)      it must include with that notification either:

                                             (i)        a statement of the reason why it issued the work diary; or

                                            (ii)        a copy of the application it received for the issue of the work diary.".  

36.            Approval of electronic work diaries

                For section 74 (3) substitute -

"(3)       The Authority may approve an electronic work diary if the diary is able to be used to record the information specified in section 57.

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

37.            Approval of AFM accreditation hours limits

         (1)   For section 84 (5) substitute -

"(5)       In approving the work and rest hours limits that are applicable to a particular AFM accreditation, the Authority:

                                  (a)      must be satisfied that the limits appear to provide a safe balance between work, rest, risk management and fatigue countermeasures; and

                                  (b)      must not set limits that:

                                             (i)        allow a driver to work more than the work time allowed, or to have less than the rest time required, in the AFM outer limits; or

                                            (ii)        that the Authority considers would be unsafe, having regard to the operator's AFM fatigue management proposal and any relevant body of fatigue knowledge.

Note    Section 52A(1) sets out the AFM outer limits .  Section 83 (3) explains what an AFM fatigue management proposal is.".

         (2)   Omit section 84 (10).

38.            Powers of authorised officers

         (1)   For section 107 (2) (c) (i) substitute -

                         "(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 her or his journey unimpaired by fatigue; and".

         (2)   For section 107 (2) (d) substitute -

              "(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 for inspection cannot be relied on as an accurate record of the time spent recently by the driver working or resting. 

Example

If an officer is given a work diary and it appears to her or him that an offence under Division 4.4 of Part 4 has been committed in relation to the diary, the officer could well form the belief referred to in sub‑paragraph (ii).

         (4)   After section 107 (3) insert -

"(3A)     If subsection (2)(c)(i) applies, the officer must specify a period of time, and must record her or his direction in the driver's work diary.".

         (5)   After section 107 (5) insert -

"(6)       To remove doubt, section 123 (Formal warnings) of the C & E Act applies for the purposes of subsection (5) as if the following provision was substituted for section 123 (3) of that Act:

                                  (3)      A formal warning must not be given for a substantial risk, severe risk or critical risk offence that relates to work/rest hours.".

39.            Substitution of section 109

                For section 109 substitute -

"109       Duty on 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 by the C & E Act.

         (2)   If the officer detains the driver for a period of 5 minutes or longer, the driver may ask the officer to record the following details in the driver's work diary:

                (a)    the officer's identifying details; and

               (b)    the time, date and place at which the officer stopped the driver; and

                (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 (1).

         (4)   An officer may comply with subsection (2)(a) by recording either her or his name, or her or his identification number.

         (5)   The regulations may further limit the circumstances in which this section applies.

         (6)   In this section, for compliance purposes has the same meaning as it has in section 26 of the C & E Act.

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 road block, an accident or a detour.".

40.            Additional function for Fatigue Authorities Panel

                For section 114 (3) substitute -

"(3)       The function of the Panel is:

                                  (a)      to consider matters referred to it by any member of the Panel under this Part, or under a corresponding provision of a corresponding fatigue law; and

                                  (b)      to determine any matter that is specified in this Act as a matter that is to be specified by the Panel.".

41.            Insertion of section 114A

                After section 114 insert -

" 114A     Approved matters to be published

                The Panel must publish in the Commonwealth Government Gazette details of any matter that it approves in exercising the function conferred on it by section114 (3) (b).".

42.            Removal of inaccurate description

                In the heading to section 115, omit "and other Authorities".

43.            Removal of redundant provision

                In section 116 (1) -

                (a)    in paragraph (c), for "Authority; or" substitute "Authority.";

               (b)    omit paragraph (d).

44.            Substitution of sections 124 - 126

                For sections 124 - 126 substitute -

"124.       Period of grace for certain drivers

         (1)   Despite anything to the contrary in this Act, until xx xxxx 200x [ the expiry of 6 months from the commencement of this section ]:

                (a)    a driver who was registered as a participant in TFMS or a corresponding TFMS may drive at BFM hours; and

               (b)    a driver who was subject to a Fatigue Management Scheme exemption under [ the old Regulations ] may drive at the hours approved in the exemption.

         (2)   Subsection (1) (a) does not apply at any time that the driver is in breach of any condition or requirement of the TFMS or a corresponding TFMS, as the case may be.

         (3)   Subsection (1) (b) does not apply at any time that the driver is in breach of any condition or requirement of the Fatigue Management Scheme exemption, or if the exemption is cancelled.

         (4)   For the purposes of this section, a driver is not in breach of any condition or requirement referred to in subsection (2) or (3) if, instead of recording any entry she or he was required to record in a logbook, she or he records the entry in a work diary issued under this Act. 

         (5)   For the purposes of this section, if a driver's employer has yet to obtain BFM accreditation, it is sufficient compliance with any requirement of this Act to record a BFM accreditation number if the employer's TFMS or FMS exemption (as the case may be) registration number is recorded instead.".

45.            Existing exemptions continue

         (1)   In section 130 (2), after "this Act" insert "if it could have been made under this Act". 

         (2)   In section 130 (3), for "The" substitute "Unless cancelled sooner under sub‑section (4), the".

         (3)   After section 130 (3) insert -

"(4)       The Authority may cancel an exemption to which this section applies:

                                  (a)      in the case of an exemption granted to an individual, by giving the person holding the exemption a written notice stating that it has cancelled the exemption; or

                                  (b)      in any other case, by publishing a notice in the Gazette stating that it the exemption is cancelled.".  

46.            Definitions

                In the Dictionary -

                (a)    in the definition of AFM outer limits , for "section 84 (10)" substitute "section 52A (1)"";

               (b)    after the definition of penalty insert -

" people -- includes a person who is a body corporate or a body politic.";

                (c)    in the definition of record location , for "section 55 (2)" substitute "section 55 (5)".